BMW of North America, Inc. v. Gore

On Remand from the United States Supreme Court

PER CURIAM.

The United States Supreme Court has vacated our earlier judgment in this case and has remanded the cause for our further consideration in accordance with BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996).

The facts are set out in their entirety in BMW of North America, Inc. v. Gore, 646 So.2d 619 (Ala.1994), and we note them here only briefly: Dr. Ira Gore, the purchaser of a BMW automobile, sued BMW of North America, Inc. (“BMW”), alleging, among other things, that BMW and Bayerische Moto-ren Werke, A.G., the foreign manufacturer of the automobile, had fraudulently failed to disclose to him that the automobile he was purchasing had been repainted after being damaged by acid rain during its shipment from Germany. At trial, BMW admitted that the car had been damaged and that BMW had a nationwide policy not to advise its dealers of predelivery damage to new cars when the cost of repair did not exceed three percent (3%) of the car’s suggested retail price. The jury returned a verdict for Gore, awarding him $4,000 in compensatory damages and $4 million in punitive damages. The trial court denied BMW’s post-trial motion challenging the punitive damages award as excessive; however, on appeal, this Court determined that the $4 million award was excessive and ordered a reduction to $2 million. The United States Supreme Court granted BMW’s petition for certiorari review.

The United States Supreme Court announced, for the first time and by a 5-4 vote, that a punitive damages award, even one that is the product of a fair trial, may be so large as to violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Supreme Court determined that, under the Due Process Clause, a defendant has the right to fair notice not only of the conduct that may subject him to punishment, but also of the severity of the penalty that a state may impose for such conduct. BMW, 517 U.S. at -, 116 S.Ct. at 1598. The Supreme Court recognized that a state may impose punitive damages to further its legitimate interest in punishing misconduct and deterring a repetition of that conduct. 517 U.S. at -, 116 S.Ct. at 1595. To that end, a state has flexibility in determining the level of punitive damages the state will allow in different classes of cases. Id. The Supreme Court held that an award of punitive damages enters “the zone of arbitrariness that violates the Due Process Clause only when that award can be fairly categorized as ‘grossly excessive’ ” in relation to those legitimate interests. Id. The Supreme Court then set out the following three “guideposts” by which a reviewing court could determine whether a punitive damages award is constitutionally excessive: (1) the degree of reprehensibility of the defendant’s conduct; (2) the ratio between the plaintiffs award of compensatory damages and the amount of the punitive damages; and (3) the difference between the punitive damages award and the civil or criminal sanctions that could be imposed for comparable misconduct. 517 U.S. at -, 116 S.Ct. at 1599.

Charting its review by these guideposts, the Supreme Court found that BMW’s action was not highly reprehensible and noted that BMW could have incurred only a mere $2,000 fine under Alabama consumer fraud law for its action. It also emphasized that the plaintiff, a successful medical doctor who was not “financially vulnerable,” had suffered only $4,000 in purely economic damages. Id. Under these facts, the Supreme Court concluded that BMW could not have reasonably anticipated that its actions could incur a punitive damages award of $4 million or even a reduced award of $2 million; thus, the Supreme Court held, the award violated BMW’s due process rights. The Supreme Court then remanded the case to this Court, for us to reassess the punitive damages award for excessiveness in view of its opinion.

We point out that, in providing three guideposts by which to review the excessiveness of a punitive damages award, the majority in BMW did not dismiss the review process already established by this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), and upheld by the United States Supreme Court in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). Indeed, the first two “guideposts” are already included in a Hammondr-Green Oil review; the first consideration of the review is the relationship of the amount of the punitive damages award to the harm that the defendant’s action has caused or is likely to cause, and the second consideration is the degree of reprehensibility of the defendant’s conduct.

Moreover, in his special concurrence in BMW, Justice Breyer discussed the Green Oil factors as a means of reasonable constraint upon arbitrary and fundamentally unfair punitive damages awards. Joined by Justices O’Connor and Souter, Justice Breyer specifically stated that the factors of the Hammond-Green Oil review may make up for the lack of significant statutory constraint against excessive punitive damages awards in Alabama. 517 U.S. at -, 116 S.Ct. at 1605. It was not the Green Oil factors themselves, but this Court’s application of them in this case that Justice Breyer found objectionable.

Thus, as we read the BMW opinion, the United States Supreme Court’s guideposts are not intended to exclude judicial consideration of other factors that might bear on the question of excessiveness; this Court has considered other such factors for some years. We see the three guideposts as factors to be emphasized in a judicial review of a punitive damages award pursuant to Hammond, Green Oil, and Ala.Code 1975, § 6-11-23(b). In sum, the United States Supreme Court’s BMW decision seems to hold that the presumption of validity Alabama extends to a jury verdict must yield to a more meaningful judicial review of that verdict when it is challenged by a tortfeasor as excessive.

I.

Until the United States Supreme Court released its decision in BMW, it was generally assumed that a statute stating that intentional fraud would subject a tortfeasor to such punitive damages as a jury might assess in a fair trial was sufficient notice of the severity of the punishment that might be inflicted. The Supreme Court held in BMW that “[ejlementary notions of fairness enshrined in our constitutional jurisprudence 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. at -, 116 S.Ct. at 1598. The Supreme Court cited only criminal cases in support of this proposition and acknowledged that “[t]he strict constitutional safeguards afforded to criminal defendants are not applicable to civil cases.” 517 U.S. at - n. 22, 116 S.Ct. at 1598 n. 22. However, the Court went on to state that “the basic protection against ‘judgments without notice’ afforded by the Due Process Clause, Shaffer v. Heitner, 433 U.S. 186, 217, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring in judgment), is implicated by civil penalties.” 517 U.S. at - n. 22, 116 S.Ct. at 1598 n. 22 (emphasis original). The Court concluded that each of the three guideposts (the reprehensibility of BMW’s conduct, the ratio of the punitive damages award to the compensatory damages award, and comparison with applicable civil and criminal sanctions) indicated to it that BMW did not receive adequate notice of the magnitude of the sanction that Alabama might impose on it for its misconduct.

The Supreme Court’s decision in BMW now requires that state courts reviewing jury verdicts challenged as violating the federal Due Process Clause determine whether the tortfeasor had adequate notice that the conduct for which the jury found him liable could subject him to punishment. Due process also requires, and state courts must now determine, whether the tortfeasor had adequate notice of the severity of the penalty that might be imposed for the activity he engaged in.

Alabama, by statute, provides notice concerning the conduct that will subject one to punitive damages in this state. Ala.Code 1975, § 6-11-20, expressly sets forth and defines the acts, as well as the state of mind:

“(a) Punitive damages may not be awarded in any civil action, except civil actions for wrongful death pursuant to Sections 6-5-391 and 6-5-410, other than in a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff. ...

“(b) As used in this article, the following definitions shall apply:

“(1) FRAUD. An intentional misrepresentation, deceit, or concealment of a material fact the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury.

“(2) MALICE. The intentional doing of a wrongful act without just cause or excuse, either:

“a. With an intent to injure the person or property of another person or entity, or

“b. Under such circumstances that the law will imply an evil intent.

“(3) WANTONNESS. Conduct which is carried on with a reckless or conscious disregard of the rights or safety of others.

“(4) CLEAR AND CONVINCING EVIDENCE. Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.

“(5) OPPRESSION. Subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

(Emphasis added.)

Alabama, by providing a judicial review of punitive damages, provides notice of the range of amounts of punitive damages a defendant may expect to pay for conduct described in § 6-11-20. This Court refined the elements of judicial review for exeessiveness of jury verdicts in 1989 by adding specific Green Oil factors to the Hammond review. We have reviewed the published opinions since that time in which this Court and the Court of Civil Appeals have affirmed awards of punitive damages, excluding wrongful death cases, and the five cases now here on remand from the United States Supreme Court. These opinions show that the overall application of the Hammond-Green Oil review by the Alabama judiciary has imposed a substantial restraint upon arbitrariness in punitive damages awards and also has provided notice of the amount of punitive damages a jury might impose. Thus, § 6-11-20, in conjunction with the sizable body of case law supplementing it, serves as clear notice to all of the action Alabama deems sufficiently reprehensible to warrant an award of punitive damages and the level to which a defendant may be punished for such conduct. All who would conduct activities in Alabama are presumed to know its laws. Barber Pure Milk Co. v. Alabama State Milk Control Bd., 275 Ala. 489, 156 So.2d 351 (1963).

II.

We now consider again the Green Oil factors, as we view them now in light of the Supreme Court’s decision in BMW, in order to determine the extent to which the punitive damages award in this case is excessive. The Supreme Court has instructed this Court that a $2 million civil penalty against BMW is grossly excessive in relation to the wrongful conduct the jury found BMW guilty of committing, and we begin our review with that in mind. We will first discuss the three guideposts set out by the United States Supreme Court, two of which are already factors of a Hammond-Green Oil review, and we will then discuss the remaining Green Oil factors.

A. Degree of Reprehensibility

According to the Supreme Court, the degree of reprehensibility of the defendant’s conduct is perhaps the “most important indi-cium of the reasonableness of a punitive damages award.” BMW, 517 U.S. at -, 116 S.Ct. at 1599. Reprehensibility of the defendant’s conduct is one of the factors Alabama courts consider in the common law excessiveness review required by Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).

‘“The degree of reprehensibility of the defendant’s conduct should be considered. The duration of this conduct, the degree of the defendant’s awareness of any hazard which his conduct has caused or is likely to cause, and any concealment or “cover-up” of that hazard, and the existence and frequency of similar past conduct should all be relevant in determining this degree of reprehensibility.’ ”

539 So.2d at 223.

Courts in Alabama consider this factor as part of a Ha/mmondr-Green Oil review, but perhaps have not heretofore given it the weight the Supreme Court in BMW says the Constitution requires in an excessiveness review of a jury verdict in a civil case. As articulated in Green Oil, this factor encompasses considerations such as “the duration of [the defendant’s] conduct, the degree of the defendant’s awareness of any hazard ... his conduct, has caused or is likely to cause,

... • any concealment or ‘cover-up’ of that hazard; and the existence and frequency of similar past conduct.” Alabama statutes also require that a court consider whether the defendant has been guilty of the same or similar acts in the past and that it consider the efforts made to remedy the wrong. § 6-11 — 23(b). To these considerations, the Supreme Court in BMW adds two others that principally determine reprehensibility: (1) the defendant’s awareness of his actions or omissions causing harm and (2) the quality and quantity of rights of others that were disregarded by the defendant.

In discussing the element of reprehensibility, the United States Supreme Court stated:

“Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct. As the Court stated nearly 150 years ago, exemplary damages imposed on a defendant should reflect ‘the enormity of his offense.’ ... This principle reflects the accepted view that some wrongs are more blameworthy than others. Thus, we have said that ‘nonviolent crimes are less serious than crimes marked by violence or the threat of violence.’ .... Similarly, ‘trickery and deceit’ ... are more reprehensible than negligence. ...”

517 U.S. at -, 116 S.Ct. at 1599 (citations and footnotes omitted). Applying this guidepost to the facts in BMW, the United States Supreme Court concluded that BMW’s conduct was not sufficiently reprehensible to warrant the imposition of a $2 million exemplary damages award. The Supreme Court emphasized that the damage to the well-to-do plaintiff was purely economic in nature. While the Court recognized that economic damage inflicted upon a financially vulnerable plaintiff might well support a large punitive damages award, the fact that the plaintiff in this case was affluent weighed against a finding of great reprehensibility. The Supreme Court also pointed out that BMW’s behavior “evinced no indifference to or reckless disregard for the health and safety of others”. 517 U.S. at -, 116 S.Ct. at 1599. The Supreme Court held:

“The sanction imposed in this case cannot be justified on the ground that it was necessary to deter future misconduct without considering whether less drastic remedies could be expected to achieve that goal. The fact that a multimillion dollar penalty prompted a change in policy sheds no light on the question whether a lesser deterrent would have adequately protected the interests of Alabama consumers. In the absence of a history of noncompliance with known statutory requirements, there is no basis for assuming that a more modest sanction would not have been sufficient to motivate full compliance with the disclosure requirement imposed by the Alabama Supreme Court in this case.”

517 U.S. at -, 116 S.Ct. at 1603.

After reconsidering the element of reprehensibility with the added emphasis the Su- prerne Court in BMW has placed upon it, we agree that, while BMW’s conduct was reprehensible enough to justify the imposition of punitive damages, it was not so reprehensible as to justify the imposition of a $2 million penalty.

B. Ratio of Actual or Likely Harm to Punitive Damages

The United States Supreme Court in BMW stated that the “most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff,” and it stated that “exemplary damages must bear a ‘reasonable relationship’ to compensatory damages.” 517 U.S. at -, 116 S.Ct. at 1601. However, the Court expressly held that due process does not require a purely mathematical formula:

“Of course, we have consistently rejected 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. ... Indeed, low awards of compensatory damages may properly 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. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneco-nomic harm might have been difficult to determine. ... In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis.”

517 U.S. at -, 116 S.Ct. at 1602-03 (citations and emphasis omitted).

Applying this guidepost to the facts in BMW, the United States Supreme Court reasoned that due process does not require any exact ratio between punitive and compensatory assessments, but that a high ratio might indicate excessiveness, particularly if the conduct of the defendant was not especially reprehensible. The Court noted that the $2 million punitive damages award is 500 times the amount of actual harm suffered, as determined by the jury, and 35 times the total actual harm suffered by the 14 Alabama consumers who had purchased repainted BMWs. 517 U.S. at-and n. 35, 116 S.Ct. at 1602 and n. 35. The Supreme Court recognized that it had upheld a $10 million punitive damages award in TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993), where the jury had awarded only $19,000 in actual damages (a punitive damages to compensatory damages ratio of over 500 to 1), but it emphasized that the plaintiffs in that case had faced much greater potential harm and that if the defendant had succeeded in its plan the ratio would have been less than 10 to 1. 517 U.S. at -, 116 S.Ct. at 1602. The Court thus distinguished TXO by finding that “there is no suggestion that Dr. Gore or any other .BMW purchaser was threatened with any additional potential harm by BMW’s nondisclosure policy”; it therefore concluded that the 500 to 1 ratio “must surely ‘raise a suspicious judicial eyebrow.’” 517 U.S. at - and -, 116 S.Ct. at 1602 and 1603, quoting TXO, 509 U.S. at 481, 113 S.Ct. at 2732 (O’Connor, J., dissenting).

Although it is difficult to determine case by case what ratio of punitive damages to compensatory damages is excessive, we reject the easy answer of adopting one ratio that would apply to all and would therefore give a wrongdoer precise notice of the penalty that his misconduct might incur. To do so would frustrate the purpose of punitive damages, which is to punish and deter a defendant’s misconduct. A ratio that could be deemed reasonable in many eases might well be insufficient in eases where the defendant has reaped great profit from its conduct, or where its conduct is particularly reprehensible. Indeed, the United States Supreme Court has consistently stated, ‘We need not, and indeed cannot, draw a mathematical bright line between the constitutionally acceptable and constitutionally unacceptable that would fit every case.” TXO, 509 U.S. at 458, 113 S.Ct. at 2720, quoting Haslip, 499 U.S. at 18, 111 S.Ct. at 1043. Likewise, we do not draw a bright line here; however, in light of the lesser degree of reprehensibility apparent in this case, as well as the other considerations of this review, we agree that the 500 to 1 ratio of punitive damages to compensatory damages in this case is grossly excessive.

C. Sanctions for Comparable Misconduct

The Supreme Court in BMW required state courts, when reviewing punitive damages verdicts for excessiveness, to “com-párete] the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.” 517 U.S. at -, 116 S.Ct. at 1603. State courts engaged in this endeavor should “‘accord “substantial deference” to legislative judgments concerning appropriate sanctions for the conduct at issue.’ ” 517 U.S. at -, 116 S.Ct. at 1603, quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301, 109 S.Ct. 2909, 2934, 106 L.Ed.2d 219 (1989) (O’Connor, J., concurring in part and dissenting in part). However, under the Alabama Deceptive Trade Practices Act, Ala.Code 1975, § 8-19-5, the maximum sanction for committing a fraudulent act against an Alabama consumer is a meager $2,000. Because the legislature has set the statutory penalty for deceitful conduct at such a low level, there is little basis for comparing it with any meaningful punitive damages award, particularly where the defendant is wealthy and the profit gained from the fraudulent act is substantial. In this case, the maximum statutory penalty does not even remove the profit BMW realized from the sale of the damaged automobile to Gore. Accordingly, a consideration of the statutory penalty does little to aid in a meaningful review of the excessiveness of the punitive damages award.

D. Does the Punitive Damages Award Remove the Defendant’s Profit?

In a Hammondr-Green Oil review, we are required to determine whether, if the wrongful conduct was profitable to the defendant, the punitive damages removed that profit and was in excess of the profit, so that the defendant recognizes a loss. Green Oil, 539 So.2d at 223. The jury determined that Gore suffered damage because he- purchased an automobile that had an actual value $4,000 less than it was represented to be. There was also evidence that as many as 14 Alabamians each had purchased an automobile from BMW with a value less than it was represented to be, because of undisclosed repainting. Although we cannot calculate the exact amount of total profit BMW realized from the 14 sales, we agree that an award of $2 million greatly exceeds the highest amount that it could possibly be.

E. The Financial Position of the Defendant

It is clear that a punitive damages award of $2 million would not have a devastating impact upon BMW’s financial position. However, where a defendant has not committed an act that would warrant a large punitive damages award, such an award should not be upheld upon judicial review merely because the defendant has the ability to pay it. In a Hammond-Green Oil review, a consideration of the defendant’s wealth must necessarily be open-ended; however, we suggest that a trial court might consider whether a punitive damages award that exceeds 10% of the defendant’s net worth crosses the line from punishment to destruction, particularly where the defendant’s conduct is not highly reprehensible. Thus, the fact that a punitive damages award exceeds 10% of the defendant’s net worth could suggest that the award should be reduced.

F. The Costs of Litigation

As this Court recognized in its original opinion in this case, the costs associated with this trial were substantial. 646 So.2d at 625. However, where other Green Oil factors do not support a large punitive damages award, substantial litigation costs borne by the plaintiff will not alone justify the award.

G.Criminal Sanctions

A Hammond-Green Oil review requires us to consider whether criminal sanctions have been imposed on the defendant for the conduct made the basis for an award of punitive damages and, if so, the nature and extent of those sanctions. No criminal sanctions were imposed upon BMW for its conduct, so this factor- is irrelevant here.

H. Other Civil Actions

As this Court noted in the original opinion in this case, 646 So.2d at 625-26, several other civil actions have been filed that are based upon the same conduct by BMW. We must view this fact as weighing against the punitive damages award.

III. Conclusion

After carefully reconsidering this case, analyzing the Hammond-Green Oil factors in the light of the United States Supreme Court’s opinion in BMW, and incorporating the guideposts articulated therein, we agree that the $2 million award of punitive damages against BMW was grossly excessive. For guidance in determining the amount of punitive damages that would be proper, we have looked to comparable cases of fraud in the sale of an automobile, particularly American Honda Motor Co. v. Boyd, 475 So.2d 835 (Ala.1985), and German Auto, Inc. v. Tamburello, 565 So.2d 238 (Ala.1990).

In Tamburello, the plaintiff bought a BMW automobile that was represented and warranted to be new and undamaged. After the purchase, the plaintiff discovered that the left rear fender of the automobile had been damaged and repainted. The plaintiff ultimately sued the BMW dealer, alleging fraud, among other claims. The jury awarded the plaintiff $2,350 in compensatory damages and $10,815 in punitive damages, and this Court affirmed a judgment based on that verdict. In Tamburello, as in the instant case, the damage to the automobile had no effect on its safety features or performance and the repairs necessitated by the damage were merely cosmetic. Moreover, the loss to the plaintiff was purely economic, and there was no evidence that the plaintiff was financially vulnerable. The ratio of punitive damages to compensatory damages was only in the range of 5:1.

In American Honda, the plaintiff purchased a foreign automobile that the dealer represented as new, but which actually had been damaged en route to the United States and had been repaired at the port of entry before it was shipped to the dealership. The plaintiff sued both the automobile dealer and the automobile distributor, American Honda Motor Company, Inc. (“American Honda”), alleging fraud, deceit, and breach of warranty. The trial court directed a verdict for the automobile dealer, and the jury subsequently returned a general verdict of $65,000 against American Honda. Because the verdict was a general one, the exact ratio of punitive damages to compensatory damages cannot be determined. We do note that, although the defendants in Tamburello and American Honda committed similar conduct, the larger judgment in American Honda was against a national automobile distributor, presumably a larger and wealthier entity than the local automobile defendant in Tamburello.

We do not imply that the 5:1 ratio in Tamburello should be the benchmark of every case, or that the wealth of a defendant like American Honda is the most critical factor for a court to consider when reviewing a punitive damages award for excessiveness. On the contrary, the reviewing court should apply all the Green Oil factors, including the three BMW “guideposts,” on a ease-by-case basis to determine whether a punitive damages award is excessive and, if so, to what extent it should be remitted. However, wé do agree that the facts in Tamburello and American Honda make those eases particularly useful for comparison to the instant case and that a punitive damages award within the range of the awards in those cases is appropriate here.

The trial court’s order denying BMW’s motion for a new trial is affirmed on the condition that the plaintiff file with this Court within 21 days a remittitur of damages to the sum of $50,000; otherwise, the judgment will be reversed and this cause remanded for a new .trial.

AFFIRMED CONDITIONALLY

SHORES, KENNEDY, and BUTTS, JJ., concur.

ALMON and COOK, JJ., concur specially.

HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur in the result.

SEE, J., recuses.

. Chief Justice Hooper and Justices Cook, Butts, and See were not members of this Court when that opinion was released. Justice Almon was a member of the Court at that time, but did not participate in the decision.

. This Court reversed the judgment as to defendant Bayerische Motaren Werke, A.G., holding that it did not have sufficient contacts with Alabama to be subject to personal jurisdiction in this state. BMW, 646 So.2d at 622.

. The United States Supreme Court also remanded these four cases for reconsideration along with BMW: Life Ins. Co. of Georgia v. Johnson, 684 So.2d 685 (Ala. 1996); Sperau v. Ford Motor Co., 674 So.2d 24 (Ala.1995); Union Security Life Ins. Co. v. Crocker, 667 So.2d 688 (Ala.1995); and American Pioneer Life Ins. Co. v. Williamson, 681 So.2d 1040 (Ala.1995).

. Out of the more than 100 published opinions dealing with punitive damages since 1989, when the Green Oil review was implemented, fewer than 10% have affirmed punitive damages awards that still exceeded $2 million after appellate review. In several of those cases where the punitive damages award affirmed exceeded $2 million, the large amount of the compensatory damages awards indicated a level of misconduct that would clearly justify an unusually high punitive damages award. See Duck Head Apparel Co. v. Hoots, 659 So.2d 897 (Ala.1995) ($4,350,000 compensatory damages and $15,000,000 punitive damages); Sears, Roebuck & Co. v. Harris, 630 So.2d 1018 (Ala.1993), cert. denied, 511 U.S. 1128, 114 S.Ct. 2135, 128 L.Ed.2d 865 (1994) ($850,000 compensatory damages and $2.5 million punitive damages). In approximately 50% of the published opinions, the punitive damages award affirmed was $100,000 or less, and in approximately 80% the punitive damages award affirmed was $1 million or less.

Note from the reporter of decisions: The Supreme Court on September 10, 1997, entered a "certificate of judgment of affirmance,” noting that “the appellee, Ira Gore, Jr., did on September 3, 1997, file in this Court an acceptance of remittitur of punitive damages to the amount of $50,000.” The certificate ordered “that the judgment of the circuit court for punitive damages be reduced to the sum of $50,000 and as thus reduced, the judgment of the circuit court is hereby affirmed, with interest and costs."