Smith v. Ingersoll-Rand, Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 7 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RON SMITH and LUCY SMITH,

Plaintiffs–Appellees,
v.
No. 98-2340
INGERSOLL-RAND COMPANY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-94-1083-MV)

John M. Kobayashi (Bennett L. Cohen, The Kobayashi Law Firm, P.C., Denver,
Colorado; and Barry Ostrager, Mary Beth Forshaw, and Daniel H. Tabak, Simpson
Thacher & Bartlett, New York, New York, with him on the briefs), The Kobayashi Law
Firm, P.C., Denver, Colorado, for Defendant-Appellant.

Esteban A. Aguilar (James A. Branch, Jr. and Michael B. Browde, Albuquerque, New
Mexico, with him on the brief), Aguilar Law Offices, Albuquerque, New Mexico, for
Plaintiffs-Appellees.

Before HENRY and PORFILIO, Circuit Judges, and WEINSHIENK,* District Judge.

*
The Honorable Zita L. Weinshienk, Senior District Judge for the United States
District Court for the District of Colorado, sitting by designation.
PORFILIO, Circuit Judge.

Ingersoll-Rand Company appeals from a judgment entered following a jury verdict

assessing a total of $27,268,661 in actual and punitive damages for injuries arising from

an incident in which a machine manufactured by the company injured appellee, Ron

Smith. Ingersoll-Rand contends the district court erred on numerous grounds warranting

reversal. We disagree and affirm.

I. BACKGROUND

At the center of this case is a large piece of construction equipment known as a

milling machine. Used to remove pavement prior to resurfacing a road, this machine

“chews” through asphalt or concrete with a revolving cutting drum and ejects the debris

out the front of the machine on a conveyer belt into a waiting dump truck. To insure the

machine cuts to a uniform depth, a pair of sensor “skis” drag along the surface of the road

on either side of the cutting drum, following the undulations of the road surface and

raising or lowering the drum to maintain a consistent cut depth. Testimony at trial

indicated these sensor skis periodically become clogged with the detritus incumbent in the

milling operation and jam in a position above the road surface. This forces the cutting

drum to rise out of the cut and effectively halts the milling operation until the skis can be

dislodged.

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 Operation of the milling machine requires a crew of two or three people, an

operator who drives the machine, and one or two groundsmen, who walk in close

proximity to the sides of the machine, setting the depth of cuts, telling the operator when

to begin and end cuts, alerting the operator of obstructions such as manhole covers, and

dislodging the sensor skis when they become jammed. Testimony at trial indicated

groundsmen commonly free the jammed skis by hammering them back down into position

with a shovel or hammer.

On April 5, 1993, Ron Smith was a groundsman for a road crew operating an

Ingersoll-Rand milling machine in Las Cruces, New Mexico. Toward the end of the

workday, Mr. Smith was using a short sledgehammer to dislodge a jammed ski while the

machine backed up. The machine operator, apparently unaware of Mr. Smith’s presence,

turned the wheels to reposition the machine for a new cut. Mr. Smith’s right foot became

trapped under the front tire of the machine, crushing his foot and injuring his lower leg to

a degree that necessitated the surgical amputation of his right leg above the knee.

Mr. Smith and his wife, Lucy, sued Ingersoll-Rand under theories of strict liability

and negligence. The Smiths alleged the milling machine was dangerously defective

because of the lack of mirrors which would enable the driver to see the sides and rear of

the machine, the jamming of the ski system, the lack of guards around the front tires, and

a lack of warning signs. At trial, the Smiths contended Ingersoll-Rand had “rushed” the

milling machine to market without undertaking adequate safety studies and that the

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company failed to add safety features even after several accidents made the machine’s

defects obvious. At the close of the evidence, Ingersoll-Rand moved for judgment as a

matter of law. The district court denied the motion, and the jury found in favor of the

plaintiffs, awarding Mr. Smith $8,529,465.20 and Mrs. Smith $1,279,192.51 in

compensatory damages, and imposing $17,400,000 in punitive damages. Ingersoll-Rand

then renewed its motion for judgment as a matter of law, and, in the alternative, moved

for a new trial or a remittitur of damages. The district court denied these motions.

Ingersoll-Rand now raises a superfluity of issues on appeal.

II. JURY EXPOSURE TO EXTRINSIC MATERIAL

We begin with Ingersoll-Rand’s claim that a new trial is necessitated by the jury’s

exposure to extrinsic materials during deliberations. In the course of deliberations the

jury requested a large writing tablet. In response to their request, the jurors were given an

easel and large notepad which, unbeknownst to the court, contained nine pages of

information written by the plaintiffs’ counsel and one of the plaintiffs’ experts during

trial. When the notepad was discovered in the jury room after deliberations, the district

court notified counsel and held two evidentiary hearings to determine whether the jurors

were exposed to the pages. After hearing the testimony of the jury foreman and the juror

who had acted as scribe, the district court determined there was not the “slightest

possibility” Ingersoll-Rand was prejudiced by the presence of the notepad pages in the

jury room. Ingersoll-Rand contends the district court erred and it is entitled to a new trial.

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 Unfortunately, this Court appears to have developed two different standards by

which a trial judge is to assess the impact of exposure to extraneous material on a jury. In

one vein of our case law, we have held jury exposure to extrinsic material warrants a new

trial if there is the “slightest possibility” the exposure affected the verdict. See United

States v. Byrne, 171 F.3d 1231, 1235-36 (10th Cir. 1999) (upholding district court’s

finding there was not the “slightest possibility” harm resulted from unadmitted exhibit

inadvertently given to jury); United States v. Jaramillo, 98 F.3d 521, 525 (10th Cir. 1996)

(same); United States v. Wood, 958 F.2d 963, 965-67 (10th Cir. 1992) (upholding grant of

new trial where district court found slight possibility jury exposure to a prosecution exhibit

inadvertently left in jury room might have harmed defendant); Johnson v. Makowski, 823

F.2d 387, 390-91 (10th Cir. 1987) (upholding district court’s finding of not even the

slightest possibility of harm where defense exhibit not received into evidence was given to

jury); United States v. Marx, 485 F.2d 1179, 1184 (10th Cir. 1973) (finding, given

overwhelming evidence of defendants’ guilt, there was not the slightest possibility the

presence of unadmitted government exhibits in jury room harmed the defendants).

In a second vein, we have held jury exposure to extraneous information creates a

“presumption of prejudice” which may be rebutted by showing the exposure was harmless.

See United States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir. 1997) (holding jury’s use of

dictionary to look-up the definition of a term relevant to defendant’s alleged offense raised

presumption of prejudice); Mayhue v. St. Francis Hospital of Wichita, Inc., 969 F.2d

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919, 922-26 (10th Cir. 1992) (upholding district court’s order of new trial on basis that

plaintiff failed to overcome presumption of prejudice raised by jury foreman’s use of

dictionary to define legal terms for other jurors); United States v. Hornung, 848 F.2d

1040, 1043-45 (10th Cir. 1988) (upholding presumption of prejudice test where third party

volunteered information about criminal defendant to juror); United States v. Day, 830 F.2d

1099, 1139 (10th Cir. 1987) (upholding use of the presumption of prejudice approach

when juror held brief conversation with government witness in court restroom); United

States v. Greer, 620 F.2d 1383, 1385 (10th Cir. 1980) (upholding the application of the

presumption of prejudice approach where U.S. Marshal engaged juror in conversation

during lunch break at trial); United States v. Gigax, 605 F.2d 507, 515 (10th Cir. 1979)

(upholding use of the presumption of prejudice approach to conversations between jurors

and third parties).

Ingersoll-Rand urges us to conflate the two approaches, arguing we should

presume prejudice, and then allow the rebuttal of that presumption only upon a showing

that there is not the slightest possibility the extrinsic evidence affected the verdict. Such

an approach has superficial appeal, but is inconsistent with our case law, which clearly

treats the two approaches as independent methods of appraising the impact of extrinsic

evidence on a jury. The critical distinction between the two approaches, of course, may

be found in the placement of the initial burden of proof. Under the “slightest possibility”

approach the burden –however light– of showing that harm occurred rests on the moving

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party. In contrast, the presumption of prejudice approach relieves the moving party of

any burden and forces the nonmovant to prove any exposure was harmless.

One may posit factual distinctions between the situations in which this Court has

employed the presumption of prejudice approach and those in which we have employed

the slightest possibility approach: generally, we appear to use the latter when unadmitted

trial exhibits stray into the jury room, while the former is generally applied where jurors

actually come into contact with third parties. However, such factual distinctions strike us

as tenuous at best, and we can see no justifiable jurisprudential reason why a jury’s

exposure to written statements not in evidence should be treated any differently than a

jury’s exposure to oral statements not in evidence. Compare Wood, 958 F.2d at 966 with

Mayhue, 969 F.2d at 921-23.

Having identified this bifurcation in our case law, judicial discretion dictates that

we leave its ultimate resolution for another day. First, precise resolution requires

adopting one standard to the foreclosure of the other, an act which may only be

undertaken by this court sitting en banc. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).

Second, under the facts of this case, it is quite clear Ingersoll-Rand was not harmed by the

presence of the extrinsic material in the jury room regardless of which standard is applied.

Under either standard, we review the district court’s determination for an abuse of

discretion, reversing only where the decision was “arbitrary, capricious, whimsical, or

manifestly unreasonable.” Byrne, 171 F.3d at 1235; See also Mayhue, 969 F.3d at 922

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(presumption of prejudice approach reviewed for abuse of discretion). Our deference is

mandated by the limitations inherent in the appellate process, for we face a cold record,

while the trial judge “has the advantages of close observation of the jurors and intimate

familiarity with the issues at trial.” Mayhue, 969 F.2d at 922 (quoting United States v.

Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988)). The trial judge is therefore “uniquely

qualified to appraise the probable effect of information on the jury, the materiality of the

extraneous material, and its prejudicial nature.” Wood, 958 F.2d at 966 (quoting United

States v. Bagnoriol, 665 F.2d 887, 885 (9th Cir. 1981)).

In this case, the trial court appropriately heeded our admonition to assess the

possibility of prejudice by “reviewing the entire record, analyzing the substance of the

extrinsic evidence, and comparing it to that information of which the jurors were properly

aware.” Hornung, 848 F.2d at 1045. When it learned of the presence of extraneous

evidence in the jury room during deliberations, the trial court notified the parties, and as

the law of this circuit requires, held hearings to determine the extent of the improper

contact. Id. After interviewing two jurors– the foreman and the scribe who actually used

the notepad– the district court determined, as a matter of fact, the jury saw only the first

of the nine notepad pages. However, in an abundance of caution, the court analyzed the

effect of the extrinsic evidence under the assumption the jury had seen all nine pages.

The trial court found all the information contained on the notepad was “cumulative and

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duplicative” of evidence properly admitted at trial.2 Additionally, the presence of this

information in written form did not prejudice Ingersoll-Rand because the jurors, which

the district court described as “particularly attentive,” were allowed to take notes at all

times during the trial. The district court thus concluded Ingersoll-Rand was not

prejudiced by the jury’s exposure and denied the motion for a new trial. Our review of

the record, and in particular of the notepad pages present in the jury room, convinces us

the district court’s conclusion that Ingersoll-Rand was not prejudiced by no means

constitutes an abuse of discretion.

III. DAUBERT AND EXPERT TESTIMONY CONCERNING DESIGN DEFECT
AND HEDONIC DAMAGES

Ingersoll-Rand contends the district court abdicated the gatekeeping requirements

imposed by Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1995), in

admitting the testimony of two experts regarding defects in the milling machine and the

testimony of a third expert concerning hedonic damages. We apply an abuse-of-

2
The fact the notepad contained only properly admitted evidence distinguishes
this case from United States v. Wood, 958 F.2d 963 (10th Cir. 1992), where the district
court granted a new trial after evidence which had explicitly been denied to the jury
turned up in the jury room during deliberations. Ingersoll-Rand does contend some of the
information contained on the notepads –the calculations of Ron Smith’s future earnings,
Lucy Smith’s lost wages, and the cost of Lucy Smith’s counseling– were admitted into
evidence without a proper evidentiary foundation. This allegation lacks merit. Our
review of the record reveals no indication the district court abused its discretion in
admitting this testimony. Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)
(holding question of whether adequate foundation exists to support a particular piece of
evidence is reviewed for abuse of discretion).

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discretion standard when reviewing a trial court’s decision to admit or exclude expert

testimony. General Electric v. Joiner, 522 U.S. 136, 138-39 (1997).

In Daubert, the Supreme Court held Federal Rule of Evidence 702 requires the

trial court to ensure any scientific testimony offered under the rule is “not only relevant,

but reliable.” 509 U.S. at 589. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137

(1999), which was decided after the district court ruled in this case, the Supreme Court

significantly clarified the scope of Daubert, holding the Rule 702 gatekeeping duties of

the trial judge apply to all expert testimony, whether such testimony is based on scientific,

technical or other specialized knowledge. Kumho also makes it clear that the

gatekeeping function is a flexible and commonsense undertaking in which the trial judge

is granted “broad latitude” in deciding both how to determine reliability as well as in the

ultimate decision of whether the testimony is reliable. Id. at 141-42. The purpose of the

Daubert gatekeeping function is not to measure every expert by an inflexible set of

criteria but to undertake whatever inquiry is necessary to “make certain that an expert,

whether basing testimony upon professional studies or personal experience, employs in

the courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Id. at 152.

Ingersoll-Rand contests the admission of the testimony of Dr. Edward Karnes,

offered by the plaintiffs as an expert in “human factors engineering,” or “ergonomics,”

and Vincent Gallagher, offered by the plaintiffs as an expert safety consultant. Dr.

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Karnes testified, based on a review of depositions and discovery material, Ingersoll-Rand

failed to conduct an adequate human factors analysis of the milling machine before

marketing it. He also testified, from the standpoint of human factors analysis, that the

lack of adequate visibility around the vehicle and the noise, which prevented adequate

communication among workers, made the machine unreasonably dangerous and

defective. Asked what devices he would recommend adding to the machine to increase

safety, Dr. Karnes testified the machine should have had mirrors to enable the operator to

view the groundsmen on either side. Finally, Dr. Karnes disputed Ingersoll-Rand’s claim

that mirrors would create a false sense of security leading to more accidents, testifying the

claim was a rationalization which had been tested and disproven in human factors

literature.

For his part, Mr. Gallager testified, based on his review of depositions and

discovery documents, Ingersoll-Rand failed to conduct appropriate hazard analyses and

risk assessments before marketing the milling machine. He opined the failure to properly

consider the hazards and risks led to adoption of improper safety measures. Ingersoll-

Rand argues the conclusions of both Mr. Gallager and Dr. Karnes are unreliable under

Daubert because neither had firsthand experience with milling machines.

We see no abuse of discretion in the district court’s decision to admit the testimony

of both Dr. Karnes and Mr. Gallagher. The record discloses they are amply qualified as

experts in their respective fields, and their testimony was limited to matters within their

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fields of expertise. Neither possessed firsthand knowledge of the particular machine at

issue, but firsthand knowledge is not requisite to the admissibility of an expert opinion.

Daubert, 509 U.S. at 592 (“[A]n expert is permitted wide latitude to offer opinions,

including those that are not based on firsthand knowledge or observation.”). The bulk of

the testimony by both Mr. Gallagher and Dr. Karnes focused on the procedures Ingersoll-

Rand followed in developing and marketing the milling machine, an area into which

firsthand observation of the machine would shed little light. Nevertheless, to the extent

the lack of firsthand experience by either expert is relevant, it goes, as the district court

ruled, to the weight and not the admissibility of the testimony. See 63B AM. JUR. 2D

Products Liability § 1860 (1997).

Ingersoll-Rand also objects to the testimony of Stan Smith, a forensic economist.

At trial, the plaintiffs attempted to have him testify, based on his own calculations, that

Ron Smith’s “hedonic” or “loss of enjoyment of life” damages fell between $1,742,514

and $2,323,411. Ingersoll-Rand moved in limine to exclude this testimony.

Responding to Ingersoll-Rand’s motion in limine to exclude Stan Smith’s hedonic

damages testimony, the district court, relying on our decision in Compton v. Subaru of

America, Inc., 82 F.3d 1513 (10th Cir. 1996), overruled by Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137 (1999), determined Stan Smith’s testimony was not

“scientific” and therefore Daubert was inapplicable. Nonetheless, the district court found

Stan Smith’s valuations of a statistical human life to be unreliable and concluded any

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attempt to quantify Ron Smith’s hedonic damages would be “both unhelpful and

confusing to the jury.” The district court therefore excluded any testimony purporting to

quantify hedonic damages.

The district court did, however, allow Stan Smith to testify about the meaning of

hedonic damages. The court reasoned that, as hedonic damages are explicitly allowed

under New Mexico law, testimony “explaining hedonic damages and how they differ

from other damages, particularly pain and suffering” would ensure hedonic damages were

given the “consideration they deserve as part of the substantive law of New Mexico” and

would help the jury “place a value on a loss that is difficult to quantify.”

Although it succeeded in excluding all testimony quantifying hedonic damages,

Ingersoll-Rand appeals, arguing, first, that expert testimony about hedonic damages is

inherently unreliable under Daubert, and, second, that the district court allowed Stan

Smith to define New Mexico substantive law on hedonic damages in violation of the

court’s duty to charge the jury on matters of law.

Ingersoll-Rand’s claim necessitates differentiating hedonic damages as a concept

from the methodology generally used in their computation. The concept of hedonic

damages is premised on what we take to be the rather noncontroversial assumption that

the value of an individual’s life exceeds the sum of that individual’s economic

productivity. In other words, one’s life is worth more than what one is compensated for

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one’s work.3 The assumption that life is worth more than the sum of economic

productivity leads to the equally noncontroversial conclusion that compensatory awards

based solely on lost earnings will under-compensate tort victims.4 The theory of hedonic

damages becomes highly controversial when one attempts to monetize that portion of the

value of life which is not captured by measures of economic productivity.

Attempts to quantify the value of human life have met considerable criticism in the

literature of economics as well as in the federal court system. Troubled by the disparity

of results reached in published value-of-life studies and skeptical of their underlying

methodology, the federal courts which have considered expert testimony on hedonic

damages in the wake of Daubert have unanimously held quantifications of such damages

inadmissable. See, e.g., Saia v. Sears Roebuck & Co., 47 F. Supp. 2d 141, 148-49 (D.

Mass. 1999) (finding Stan Smith’s hedonic damages testimony inadmissible because his

calculations are untestable and the theory does not meet the requirement of general

acceptability); Mercado v. Chicago, No. 96-C-2787, 1997 WL 537343 (N.D. Ill. 1997)

(excluding Stan Smith’s hedonic damages testimony due to the lack of unanimity among

economists as to which life valuation studies ought to be considered) (citing Mercado v.

Ahmed, 756 F. Supp. 1097 (N.D. Ill. 1991)); Brereton v. United States, 973 F. Supp.

3
Those of us who toil in the public sector have little trouble with this concept.
4
Joseph A. Kuiper, Note, The Courts, Daubert, and Willingness-to-Pay: The
Doubtful Future of Hedonic Damages Testimony Under the Federal Rules of Evidence,
1996 U. ILL. L. REV. 1197, 1203 (1996).

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752, 758 (E.D. Mich. 1997) (finding Stan Smith’s calculations of hedonic damages

unreliable under Daubert); Kurncz v. Honda North America, 166 F.R.D. 386 (W.D.

Mich. 1996) (finding Stan Smith’s hedonic damages testimony inadmissable under

Daubert for the reasons articulated in Ayers v. Robinson, 887 F. Supp. 1049 (N.D. Ill.

1995)); McGuire v. City of Santa Fe, 954 F. Supp. 230, 232-33 (D.N.M. 1996) (finding,

under Daubert, hedonic damage testimony is neither testable nor generally accepted);

Ayers v. Robinson, 887 F. Supp. 1049 (N.D. Ill. 1995) (finding variation of results and

assumptions underlying value of life studies made hedonic damages calculations

unreliable under Daubert); Hein v. Merck & Co., 868 F. Supp. 230 (M.D. Tenn. 1994)

(rejecting hedonic damages testimony as insufficiently reliable or valid to meet the

requirements of Daubert); and Sullivan v. United States Gypsum Co., 862 F. Supp. 317

(D. Kan. 1994) (finding Stan Smith’s calculation of hedonic damages to lack sufficient

validity to be admissible under Daubert).

This case, however, does not require us to determine the admissibility of studies

purporting to quantify hedonic damages, and we venture no opinion on that count. We

must instead evaluate the considerably narrower testimony the district court did admit.

Here, Stan Smith testified only to the definition of loss of enjoyment of life, which he

described as “an estimate of the value of a person’s being for enjoyment of life as

opposed to the value of a person’s doing or their economic productive capacity, whether

it’s in the marketplace, in the business, or in the household as a service.” Stan Smith

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further testified that in valuing the loss of enjoyment of life he considers the effect the

injury has on “the ability to enjoy the occupation of your choice,” “activities of daily

living,” “social leisure activities” and “internal well-being.”

As we noted above, the district court, relying on our decision in Compton,

admitted Stan Smith’s testimony without explicitly preforming a Daubert analysis. We do

not believe, however, the bare fact that the district court did not explicitly utilize the

Daubert analysis in admitting Stan Smith’s testimony renders the admission erroneous.

Kumho teaches that the word Daubert is not talismanic; it simply means that prior to

admitting expert testimony, the court must insure the testimony “is not only relevant, but

reliable.” Kumho, 526 U.S. at 147.

We believe the district court appropriately exercised its Rule 702 gatekeeping

function. First, the district court determined that testimony defining hedonic damages

was relevant. As the district court correctly noted, New Mexico state law permits both

the recovery of hedonic damages and allows “an economist to testify regarding his or her

opinion concerning the economic value of a plaintiff’s loss of enjoyment of life.” Sena v.

New Mexico State Police, 892 P.2d 604, 611 (N.M. Ct. App. 1995), cert. denied, 890

P.2d 1321 (N.M. 1995). The district court also made an appropriate decision regarding

reliability, excluding the quantification which has troubled both courts and academics, but

allowing an explanation adequate to insure the jury did not ignore a component of

damages allowable under state law.

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 Ingersoll-Rand also contends Stan Smith’s explanation of hedonic damages

constituted impermissible testimony on an ultimate question of law, violating our

admonition that “in no instance can a witness be permitted to define the law of the case.”

Specht v. Jensen, 853 F.2d 805, 810 (10th Cir. 1988). This rule is not, however, a per se

bar on any expert testimony which happens to touch on the law; an expert may be “called

upon to aid the jury in understanding the facts in evidence even though reference to those

facts is couched in legal terms.” Id. at 809. Expert testimony on legal issues crosses the

line between the permissible and impermissible when it “attempt[s] to define the legal

parameters within which the jury must exercise its fact-finding function.” Id. at 809-10

(emphasis added).

We do not believe Stan Smith’s testimony constitutes such an attempt. Stan Smith

did no more than explain his interpretation of the meaning of hedonic damages and offer

four broad areas of human experience which he would consider in determining those

damages. Importantly, Stan Smith made no attempt to apply the facts of this case to the

criteria he proffered to the jury; the jury remained free to exercise its fact-finding

function. We believe Stan Smith’s testimony on hedonic damages no more defined the

law of the case than did his testimony regarding the computation of other types of

damages. For example, he described in great detail the factors the jury could consider in

calculating Ron Smith’s lost future earnings. Such testimony is common and certainly

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does not define the law of the case. 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD,

FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6264 (1997).

IV. ADMISSION OF OTHER ACCIDENTS

Ingersoll-Rand’s third proposition of error is the district court’s admission of

evidence concerning six other accidents involving the company’s milling machines. We

review the admission of evidence for abuse of discretion. C.A. Associates v. Dow

Chemical Co., 918 F.2d 1485 (10th Cir. 1990). We must afford great deference to the

district court; review of a cold record is a poor substitute for a trial judge’s intimate

familiarity with the evidence and its role in the context of the trial as a whole.

The threshold inquiry in any dispute over the admissibility of evidence is whether

the evidence is relevant. Id. at 1489. In situations involving the admissibility of other

accidents, relevance is determined by the “substantial similarity” test. Ponder v. Warren

Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987). Accidents bearing substantial

similarity to the case before the court make the existence of a fact of consequence to the

action before the court more or less probable, while dissimilar accidents are less likely to

bear on a fact of consequence to the case before the court. The precise degree of

similarity required to ensure the relevance of another accident depends on the theory of

defect underlying the case. Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979

F.2d 1434, 1440 (10th Cir. 1992); Ponder, 834 F.2d at 1559. Hence we require a high

degree of similarity when plaintiffs offer other accident evidence to prove causation in

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their case, but accept a lesser degree of similarity when evidence of other accidents is

offered to show the defendant had notice of potential defects in its product. Wheeler v.

John Deere Co., 862 F.2d 1404, 1407 (10th Cir. 1988); Ponder, 834 F.2d at 1559. We

must consider, then, with considerable precision, not only the facts of the other incidents

but the theories under which plaintiffs urge their admission.5

In this case, the plaintiffs offered the six other incidents involving Ingersoll-Rand

milling machines to show that: (1) the milling machine which injured Mr. Smith was

defectively designed; (2) Ingersoll-Rand had notice of the defective design; and (3)

Ingersoll-Rand had a culpable mental state for purposes of assessing punitive damages.

5
The facts of the other accidents admitted by the district court, as gleaned from
the record, are as follows:
(1) Ledgerwood Accident. On October 17, 1990, Mr. Ledgerwood was struck and killed
by a model MT-6520 milling machine. Mr. Ledgerwood was standing on the right side
toward the front of the machine and was struck while the machine was moving in reverse.
(2) Rogers Accident. On April 27, 1992, Ms. Rogers was struck and injured by a model
MT-6520 milling machine. Ms. Rogers was standing behind the machine flagging traffic
and was struck while the machine was reversing.
(3) Alexander Accident. On April 19, 1993, Mr. Alexander was struck and injured by a
model MT-7000 milling machine. Mr. Alexander was standing to the left rear of the
machine as it backed-up.
(4) Johnson Accident. On February 25, 1994, Mr. Johnson was struck and injured by a
model MT-7000 milling machine. Mr. Johnson was struck while kicking a ski to dislodge
it while the machine was moving in reverse.
(5) Madden Accident. On July 6, 1994, Mr. Madden was struck and injured by a MT-
7500 milling machine. Mr. Madden was standing on the left side of the machine near the
rear and was struck while the vehicle was reversing.
(6) Washington Accident. On September 28, 1994, Mr. Washington was struck by a
model MT-7500 milling machine. Mr. Washington was standing on the left side of the
machine clearing debris and was struck as the machine moved forward.

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Although the district court admitted evidence of all six accidents, its grounds for doing so

are less than clear. Ruling from the bench on October 20, 1997, the district court denied

Ingersoll-Rand’s motion in limine to exclude the evidence of the other accidents stating,

“I find a substantial similarity between all of these accidents and the one that is in issue

here. I also believe that they are relevant to the question of existence of a default.” In

court on November 7, 1997, while addressing Ingersoll-Rand’s objection to the admission

of accident reports prepared by private investigators employed by Ingersoll-Rand, the trial

judge remarked, “the evidence with regard to other accidents that occurred involving this

type of equipment and the specificity involved in those particular accidents are clearly

relevant and admissible on the question of Ingersoll-Rand’s knowledge of what kind of

potential hazards existed because of their equipment, the seriousness of the injuries and,

for purposes of punitive damages, their mental state in terms of what they did about this.”

However, the court’s written orders indicate a narrower basis for admission. The

court’s written order of November 12, 1997, denying the motion in limine to exclude

evidence of the other incidents concludes “the accidents at issue are substantially similar

to Mr. Smith’s alleged accident, and are therefore admissible to show notice of the

existence of a design default.” Likewise in its Memorandum Opinion and Order in

response to Ingersoll-Rand’s Motion for a New Trial and Renewed Motion for Judgment

as a Matter of Law, the court reiterates its finding that the other accidents were

substantially similar for purposes of demonstrating notice of defect.

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 Our review, however, is not contingent on the theory of admissibility adopted by

the district court: “evidence does not become inadmissible simply because the district

court relied on an erroneous reason for admitting it. So long as the evidence is admissible

under some legally correct theory, no error occurred.” United States v. Jackson, 88 F.3d

845, 847 (10th Cir. 1996). We are free to affirm the rulings of a district court “on any

ground that finds support in the record, even where the lower court reached its

conclusions from a different or even erroneous course of reasoning.” Cayce v. Carter Oil

Co., 618 F.2d 669, 677 (10th Cir. 1980). We thus proceed to evaluate each of the six

incidents admitted by the trial court and the three grounds of admissibility offered by the

plaintiffs.

We begin with the plaintiffs’ theory that the other incidents were admissible to

show Ingersoll-Rand had notice of the defects which caused Mr. Smith’s injury. To be

admissible on the theory of notice, the incidents must be similar enough to the event in

question that they would have alerted the defendant to the problem or danger at issue. In

this case, four of the six incidents (Johnson, Madden, Washington, and Alexander) were

incorrectly admitted to show notice, as they occurred after the incident at issue here. See

Julander v. Ford Motor Co., 488 F.2d 839 (10th Cir. 1973) (holding evidence of

subsequent incident inadmissible to show notice of defect). The district court’s holding

as to the remaining two incidents (Ledgerwood and Rogers) appears correct. Both

incidents involved injuries to members of the ground crew caused by reversing milling

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machines. Both cases raise the issue of visibility, which is one of the plaintiffs’ theories

of defect in this case, and both incidents sufficiently preceded Mr. Smith’s accident to

serve as notice to Ingersoll-Rand.

We consider now the admissibility of the six incidents as proof of defective design.

The Smiths’ claim of defective design is composed of four subparts: (1) lack of mirrors

which would allow the operator to see the sides and back of the machine; (2) defective

design of the ski system; (3) lack of a physical guard over the large opening behind the

front tires; and (4) lack of an emergency stop switch accessible to the ground crew. Of

the plaintiffs’ four theories of defectiveness, the centerpiece of their case at trial was the

lack of visibility from the operator’s platform and the feasibility of equipping the machine

with mirrors.

We first note that under New Mexico substantive law, which governs this case,

incidents occurring after the incident at issue, but before the date of trial, may be used to

prove a product is defective. See Brooks v. Beech Aircraft Corp., 902 P.2d 54, 63 (N.M.

1995) (quoting Dart v. Wiebe Manufacturing, Inc., 709 P.2d 876, 881 (Ariz. 1985))

(“The quality of the product may be measured not only by the information available to the

manufacturer at the time of design, but also by the information available to the trier of

fact at the time of trial.”). The fact that four of the incidents proffered occurred

subsequent to Mr. Smith’s accident does not preclude their admissibility to prove the

existence of a defect.

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 Ingersoll-Rand urges that the six incidents are too dissimilar to support

admissibility on a defect theory. First, the six incidents proffered by the plaintiffs involve

several different models of milling machines. In addition to the MW-6520 which injured

Mr. Smith, two incidents involved the MT-6520, two the MT-7000 and two the MT-7500,

also known as the Pro Cut 2200. The record indicates the MW-6520, which injured Mr.

Smith, was Ingersoll-Rand’s first foray into the milling machine market. It is apparently

smaller than the other three milling machines, and it moves on wheels, while the other

machines move by means of tracks, like a military tank.

The substantial similarity rule does not require identical products; nor does it

require us to compare the products in their entireties. The rule requires substantial

similarity among the variables relevant to the plaintiff’s theory of defect. Here, for

example, the plaintiffs’ primary allegation of defect is the lack of visibility from the

operator’s platform and the feasibility of equipping the machines with mirrors. The

Smiths argue the configuration of the MW-6520’s operator platform, which enables the

operator to move back and forth across the machine and steer from either side, rather then

sitting in a fixed position, creates dangerous visibility problems; when an operator stands

on one side, his ability to see people on the other side is greatly diminished. Although the

milling machines are of different sizes, and thus their blind spots are not identical, they

are substantially similar when viewed from the perspective of this allegation of defect.

All the machines in question have open platforms with no fixed operator station, none are

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equipped with mirrors, and none of the operators saw the victims immediately prior to

hitting them.

Similarly, Ingersoll-Rand’s defense to this allegation of defect demonstrates the

propriety of treating the models as similar. Ingersoll-Rand argued mirrors would be of

little use because they would become dirtied or broken by the rigors of the milling

operation, vibrate to a degree making them unusable, and instill a false sense of security

in the machine operator. These assertions are equally applicable to all of the milling

machines in question, underscoring our conclusion that the machines are substantially

similar for purposes of the visibility defect.

Ingersoll-Rand also contends the circumstances surrounding the incidents are too

dissimilar to warrant comparison. Similarity of circumstances is, like similarity of the

product, viewpoint dependent. For example, from the broadest perspective, all six

incidents could be construed as similar, since all occurred while the milling machine was

moving. More narrowly, five incidents occurred as the machine was moving in reverse.

Still more narrowly, only two of the incidents occurred while the machine was moving in

reverse and turning. Finally, only Mr. Smith was struck while attempting to dislodge a

jammed ski while the machine was moving in reverse and turning. We select the

appropriate viewpoint by reference to the plaintiff’s theory of defect. In this case,

plaintiffs’ theory regarding lack of visibility is broad enough to encompass all six

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incidents. The plaintiffs produced evidence that in each case lack of visibility was at least

a potential cause of the incident.

We also note the plaintiffs introduced evidence indicating Ingersoll-Rand itself did

not consider the various milling machine incidents too dissimilar to warrant comparison.

The record indicates that in 1994 Ingersoll-Rand held both an internal meeting and a

meeting with members of the Construction Industry Manufacturer’s Association (CIMA)

to discuss the six milling machine accidents.

Finally, we consider the admissibility of the other incidents to demonstrate

Ingersoll-Rand had the culpable mental state necessary to award punitive damages.6

Under New Mexico law, evidence going toward the defendant’s mental state is relevant

for purposes of punitive damages, and such evidence may include conduct occurring after

the incident in question. See Gonzales v. Surgidev Corp., 899 P.2d 576, 584 (N.M. 1995)

(allowing admission of articles criticizing defendant’s lens implants published after

plaintiff’s surgery, but before defendant removed lens from market). New Mexico law

also provides evidence supporting punitive damages need not have been admissible on the

issue of compensatory damages. See Clay v. Ferrellgas, Inc., 881 P.2d 11, 17 n.4 (N.M.

1994) (upholding admission of evidence defendant routinely neglected to file required

The necessary mental state required under New Mexico law to award punitive
6

damages is discussed in Section V below.

- 25 -
forms with state inspector in case alleging defendant negligently installed a propane tank

in plaintiff’s automobile).

We believe all six other incidents are clearly relevant to Ingersoll-Rand’s mental

state. Plaintiffs argued throughout trial that Ingersoll-Rand “rushed” to enter the milling

machine market, and in so doing neglected to adequately conduct a “human factors”

analysis. In particular, the plaintiffs emphasized Ingersoll-Rand’s failure to study the

feasibility of placing mirrors on the machine to ameliorate visibility problems. The other

acts evidence allowed the jury to make the reasonable inference that Ingersoll-Rand

persevered in its refusal to place mirrors on its machines despite numerous accidents

potentially caused by poor visibility.

We conclude, then, that all six incidents were appropriately admitted to show

mental state for the purposes of assessing punitive damages, and all six were

appropriately admitted to show the visibility defect, but only the Rogers and Ledgerwood

incidents were properly admissible to show notice. Ideally, of course, the district court

should have instructed the jury about limitations on the use of each other incident. The

burden in this situation, however, fell to Ingersoll-Rand to request an appropriate limiting

instruction. United States v. Barbee, 968 F.2d 1026 (10th Cir. 1992). Ingersoll-Rand’s

failure to request a limiting instruction constitutes waiver of any objection based on the

court’s failure to give such an instruction. Robinson v. Audi NSU Auto Union

Aktiengesellschaft, 739 F.2d 1481, 1485 (10th Cir. 1984).

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 V. JURY INSTRUCTIONS REGARDING PUNITIVE DAMAGES

Ingersoll-Rand contends the district court erroneously instructed the jury regarding

the mental state necessary under New Mexico law to support an award of punitive

damages. We consider jury instructions in their entirety, applying de novo review to

determine whether the jury was misled on the applicable law. Medlock v. Ortho Biotech,

Inc., 164 F.3d 545, 552 (10th Cir. 1999). Despite this standard of review, we do not

require perfection, but “we must be satisfied that, upon hearing the instructions, the jury

understood the issues to be resolved and its duty to resolve them.” Id.

The district court instructed the jury, pursuant to the New Mexico Uniform Jury

Instructions, that it could award punitive damages if it found Ingersoll-Rand’s conduct

“was malicious, willful, reckless, wanton or grossly negligent.” Ingersoll-Rand argues

the trial court erred in giving this instruction, contending the New Mexico Supreme Court

eliminated gross negligence as a mental state sufficient to support the award of punitive

damages in Paiz v. State Farm Fire and Casualty Co., 880 P.2d 300 (N.M. 1994).7 The

plaintiffs respond that Ingersoll-Rand misreads Paiz; while Paiz indeed held gross

negligence to be an insufficient mental state, it did so because the jury instruction at issue

in Paiz defined gross negligence as “failure to exercise even slight care.” Id. at 308. The

Smiths assert the district court complied with Paiz, not by eliminating gross negligence

7
The New Mexico jury instruction in question was amended in 1998 to eliminate
gross negligence as a basis for the award of punitive damages. Ingersoll-Rand makes no
argument that this modification should be applied retroactively to this case.

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from the jury instructions, but by defining it as “an act or omission done with conscious

indifference to harmful consequences.” 8

Our reading of Paiz comports with that of the plaintiffs. The jury instruction at

issue in Paiz troubled the court because it permitted a jury to award punitive damages on

a showing of gross negligence, which was defined as “failure to exercise even slight

care.” Id. The New Mexico Supreme Court reasoned that punitive damages are intended

to punish and deter prohibited conduct, and thus should only be assessed where the

8
It is not clear under New Mexico law that Paiz is applicable at all to the award of
punitive damages in product liability cases. On its facts, Paiz was an action for breach-
of-contract. Nonetheless, the court ordered the modification of the uniform jury
instruction on punitive damages, which is applicable in both tort and contract. (N.M.
Uniform Jury Instructions Civil 13-1827). The punitive damages jury instruction was
subsequently modified, a modification presumptively approved by the New Mexico
Supreme Court, to remove gross negligence from the list of culpable mental states,
suggesting that Paiz applies in tort as well as contract.
However, immediately following Paiz, the New Mexico Supreme Court decided
Clay v. Ferrellgas, Inc., 881 P.2d 11 (N.M. 1994), in which the court explicitly declined
to address the question of whether grossly negligent conduct constitutes a sufficient basis
for the assessment of punitive damages in the tort context. Id. at 15 n.2. Similarly, in
Torres v. El Paso Elec. Co., 987 P.2d 386, 397 (N.M. 1999), the New Mexico Supreme
Court again noted in dicta that “[w]hile it is true that this Court rejected gross negligence
as a basis for punitive damages in a contract action in Paiz v. State Farm Fire and Cas.
Co., we specifically declined to reach the issue in the context of a negligence action in
Clay.” (citations omitted). We need not attempt to define the intended reach of the Paiz
decision. See Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (We should not
“undertake to decide issues that do not affect the outcome of a dispute.”)
We believe the district court instructed the jury in a manner that assures they
determined Ingersoll-Rand acted with a mental state which comports with Paiz. Should
the New Mexico Supreme Court determine Paiz is inapplicable outside of the context of
contract law, then the jury awarded punitive damages under an overly restrictive
instruction, and the error is harmless.

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conduct at issue displays a “conscious” or “deliberate” disregard of a potential harm. Id.

The defendant must act knowingly, displaying an “evil motive” or culpable mental state.

Id. The Paiz court set the mental state necessary to support punitive damages at “reckless

disregard,” which, under its definition, occurs, “when the defendant knows of potential

harm to the interests of the plaintiff but nonetheless ‘utterly fails to exercise care’ to avoid

the harm.” Id. (citations omitted).

The crux of the Paiz decision, thus, is the degree of mental culpability required to

award punitive damages; the legal catch-phrase attached to that mental state is secondary,

if not wholly arbitrary. As the Paiz court noted, the phrase gross negligence is “so

nebulous” as to have “no generally accepted meaning.” Id. at 309 (quoting W. PAGE

KEETON, ET. AL, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984)).

In this case, the district court defined the phrase gross negligence as “an act or omission

done with conscious indifference to harmful consequences.” (emphasis added). In so

doing, the district court aligned the definition of gross negligence with the mental state

required in Paiz. To hold the district court improperly instructed the jury would be to

elevate form over meaning, and violate our edict that “no particular form of words is

essential if the instruction as a whole conveys the correct statement of the applicable

law.” Webb v. ABF Freight System, Inc., 155 F.3d 1230, 1248 (10th Cir. 1998) (internal

quotation omitted). Here, we are satisfied the instructions as a whole convey a correct

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statement of the law of the State of New Mexico and can discern no abuse of discretion

on the part of the trial court.

VI. EXCESSIVE DAMAGES

Ingersoll-Rand contends both the jury’s compensatory and punitive damages

awards are excessive and asks that we remand for retrial or remit the awards.

a. Compensatory Damages

We review the district court’s decision to deny a new trial or remittitur under an

abuse of discretion standard. Gasperini v. Center for Humanities, Inc., 518 U.S. 415,

435 (1996) (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492

U.S. 257, 279, n.25 (1989)). In a diversity action state law governs the propriety of an

award of damages. Under the law of New Mexico, a jury’s assessment of damages is

largely inviolate and is not to be disturbed “except in extreme cases, as where it results

from passion, prejudice, partiality, sympathy, undue influence, or some corrupt cause or

motive where palpable error is committed by the jury, or where the jury has mistaken the

measure of damages.” E.W. Richardson v. Rutherford, 787 P.2d 414, 422 (N.M. 1990).

In this case, the jury awarded Mr. Smith $8,529,469 and Mrs. Smith $1,213,000 in

compensatory damages. Of Mr. Smith’s total compensatory damages, approximately $1.5

million are “quantifiable” – past and future medical costs and past and future lost income.

The remaining $7,000,000 is composed of “nonquantifiable” damages for “pain and

suffering” and “loss of enjoyment of life.” Of Mrs. Smith’s compensatory damages,

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$213,000 are quantifiable economic damages, and the remaining $1,000,000 is apparently

attributable to her loss of consortium.

Ingersoll-Rand contends an award of seven million dollars for pain and suffering

or loss of enjoyment of life and one million dollars for loss of consortium is grossly

excessive, and can only be a result of passion and prejudice created by the presence of

extrinsic evidence in the jury room during deliberations, the admission of evidence of

other accidents, and the admission of improper expert testimony. We have, of course,

already considered and rejected each of these alleged bases of error. Having concluded

they do not constitute error, we have no trouble reaching the conclusion that they did not

prejudice the jury. Ingersoll-Rand is thus left with the argument that the sheer size of

these awards permits the inference they were based on passion or prejudice.

In support of that argument, Ingersoll-Rand suggests these nonquantifiable

damages awards considerably exceed jury verdicts in similar cases. We are hesitant to

accept the invitation to undertake this comparative inquiry. First, such comparisons yield

no insight into the evidence the jurors heard and saw or how they used it during their

deliberations. Second, such comparisons detract from the appropriate inquiry, which is

whether the verdict is against the weight of the evidence. Blanke v. Alexander, 152 F.3d

1224, 1236 (10th Cir. 1998); see also Coates v. Wal-Mart Stores, Inc., 976 P.2d 999,

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1010 (N.M. 1999) (“[E]ach case of [compensatory damages] must be decided on its own

facts and circumstances.”)9

Review of this record convinces us these damages awards are not against the

weight of the evidence. The jury heard ample evidence of the physical and emotional

pain Mr. Smith suffered and will continue to suffer, the permanent changes in his ability

to perform and enjoy the activities of life, and the changes in his relationship to his wife

and children, to support the “pain and suffering” and hedonic damage he was awarded.

Similarly, the jury heard sufficient evidence of Mrs. Smith’s emotional distress over her

husband’s injury and the strain placed on their relationship to support her award for loss

of consortium. Therefore, although the amounts awarded here are unquestionably large,

we find no grounds to substitute our judgment for that of the jury and trial judge who

heard and considered the evidence at trial.

b. Punitive Damages

Ingersoll-Rand also contends the jury award of punitive damages in the amount of

$17,460,000 violates substantive due process. We review the constitutionality of a

punitive damages award de novo, FDIC v. Hamilton, 122 F.3d 854, 857 (10th Cir. 1997),

9
If we were to engage in a comparison of jury awards in factually similar cases,
we would have to begin with Rogers v. Ingersoll-Rand, Co., 971 F. Supp. 4, 8 (D.D.C.
1997), one of the similar incidents introduced by the plaintiffs in this case. In Rogers, the
jury awarded the plaintiff, whose leg was crushed by an Ingersoll-Rand milling machine,
$10,200,000 in compensatory damages. This award was subsequently upheld on appeal
by the D.C. Circuit. Rogers v. Ingersoll-Rand Co., 144 F.3d 841 (D.C. Cir. 1998).

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under the rubric of the Supreme Court’s decision in BMW of North America v. Gore, 517

U.S. 559 (1996).

Under BMW a substantive due process challenge to a jury award of punitive

damages requires a two-step inquiry: first, we must define the scope of the state interest

the punitive award is intended to further, id. at 568, and, second, we are to determine

whether the award is “grossly excessive” in comparison to that state interest. Id. at 574.

Most litigation challenging the constitutionality of an award of punitive damages focuses

on the second step of this inquiry, determining whether an award is grossly excessive by

analyzing the reprehensibility of defendants’ conduct, the ratio of potential harm to

punitive damages, and the disparity between civil penalties and the punitive damage

award.

Here, however, our analysis begins with the inquiry into the scope of the state

interest the punitive award is intended to further. Ingersoll-Rand, focusing on the

Supreme Court’s statement in BMW that “a State may not impose economic sanctions on

violators of its laws with the intent of changing the tort-feasor’s lawful conduct in other

States,” contends the jury’s assessment of punitive damages was improperly based on

accidents which occurred outside the State of New Mexico. Id. at 572.

BMW does not, however, create an absolute bar to jury consideration of similar

incidents simply because they occurred outside the jurisdiction in which the jury sits. The

BMW court points out that out-of-state acts are clearly admissible “to show the degree of

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reprehensibility of a defendant’s conduct.” Id. at 574, n.20. See also Continental Trend

Resources, Inc. v. OXY USA, Inc., 101 F.3d 634, 638 (10th Cir. 1996).

In BMW, the defendant was assessed punitive damages for activities in other

states, which were explicitly legal in those states. By punishing behavior in other states

which those states had made a legislative decision to permit, Alabama reached beyond its

own zone of legitimate interests and encroached on the sovereign interests of other states.

BMW, 517 U.S. at 570-72. The Supreme Court used habitual offender statutes to

illustrate that these issues of sovereignty and comity do not arise when the behavior

punished is not lawful in the other jurisdictions:

Habitual offender statutes permit the sentencing court to enhance a
defendant’s punishment for a crime in light of prior convictions, including
convictions in foreign jurisdictions. A sentencing judge may even consider
past criminal behavior which did not result in a conviction and lawful
conduct that bears on the defendant’s character and prospects for
rehabilitation. But we have never held that a sentencing court could
properly punish lawful conduct. This distinction is precisely the one we
draw here.

Id. at 573 n.19. We thus have no trouble concluding the district court did not exceed New

Mexico’s legitimate interest in punishing and deterring the production of defective

products by permitting the jury to consider incidents occurring outside the state. Not only

were the out-of-state incidents offered to illustrate the reprehensibility of Ingersoll-

Rand’s conduct, but the manufacture of defective products is not a lawful activity in any

of the jurisdictions where the other incidents occurred.

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 Having established the jury did not consider evidence outside New Mexico’s

legitimate scope of interests, we must now determine whether Ingersoll-Rand received

“fair notice not only of the conduct that will subject [it] to punishment, but also of the

severity of the penalty that a State may impose.” Id. at 574. “Perhaps the most important

indicium” of the fairness of a punitive damages award is the “degree of reprehensibility of

the defendant’s conduct.” Id. at 575. In analyzing the reprehensibility of Ingersoll-

Rand’s behavior, we make all inferences from the available evidence in favor of the

plaintiffs. United International Holdings, Inc. v. The Wharf (Holdings) Limited, ___

F.3d.___, Nos. 97-1421, 98-1002 ,2000 WL 504735, at *21 (10th Cir. 2000). Doing so,

Ingersoll-Rand’s conduct may reasonably be construed as reprehensible: the jury could

have found the company rushed into production a potentially dangerous product without

conducting necessary safety and human factors evaluations and then refused to make

feasible modifications even after numerous accidents illustrated the product’s

shortcomings.

Our inquiry into whether Ingersoll-Rand had fair notice of the severity of the

penalty its conduct could incur requires an examination of the ratio of punitives to actual

harm inflicted on the plaintiff. BMW, 517 U.S. at 580. Fair notice requires punitive

damages bear a “reasonable relationship” to compensatory damages. Id. Here the jury

awarded $17,460,000 in punitive damages and $9,808,661 in compensatory damages,

resulting in a ratio of 1.78:1. Although substantive due process does not compel a magic

- 35 -
ratio above which an award “cross[es] the line into the area of constitutional

impropriety,” Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 24 (1991), we believe a

ratio of less than 2:1 does not “raise a suspicious judicial eyebrow.” TXO Production

Corp v. Alliance Resources Corp., 509 U.S. 443, 481 (1993) (O’Connor, J., dissenting).

We are therefore satisfied the punitive damages awarded here are fair and constitutionally

permissible.

VII. CONCLUSION

The task of a trial judge in conducting a fair trial is as much art as science, and a

trial of this magnitude –spanning a month and including the testimony of over thirty

witnesses– crosses numerous junctures at which reasonable jurists could have diverged

and reached different but equally valid outcomes. The majority of the issues Ingersoll-

Rand raises on appeal –the jury’s exposure to extraneous material, the admission of

experts under Daubert, the admission of other acts evidence and the question of the

excessiveness of compensatory damages– occur precisely at such junctures. In reviewing

questions of this nature, our role is not to determine whether the trial judge proceeded at

every juncture exactly as we would have. Instead, we are to defer to the trial judge’s

decisions unless it is obvious he or she has “exceeded the bounds of permissible choice in

the circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994). Close review

of the record indicates to us the trial judge here acted well within the bounds of

permissible choice.

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 As for the two issues raised by Ingersoll-Rand which warrant closer review –the

appropriateness of the jury instructions and the constitutionality of the punitive damages

award– our de novo review reveals no error in the trial court’s initial decisions. We

therefore AFFIRM in its entirety the judgment of the district court.

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