concurring. I believe that our opinion herein correctly analyzes the law and comes to the conclusion which logically results from that analysis. The punitive damages verdict was lawful. The verdict does not exceed the restrictions on punitive awards established by the ruling case law. The verdict was rendered by the jury after a fundamentally fair trial, untainted by prejudicial error. Surprisingly, no request for remittitur was made. Hence the trial judge did not exercise his discretion in that regard. The verdict was unanimously affirmed by the court of appeals.
Having acknowledged the foregoing, I confess that the punitive damages award of the jury in this case seems high. This subjective judgment does not permit me, as an appellate judge, to set aside the jury determination. Further, it is difficult to make such judgments on the basis of a cold record. Still, the verdict is high. It is high enough that I am prompted to address a problem that I believe to be endemic. The problem is that juries are given little or no guidance with respect to the measure of punitive damages. The consequence is that the amount awarded by a jury for punitive damages is unpredictable. It can be very high or nominal. In either event, appellate courts do not tamper with the result unless the verdict (1) reflects passion and prejudice or (2) is the result of legal error.
A solution to this problem may lie in giving jurors more guidance. The American College of Trial Lawyers has proposed model instructions on punitive damages. In my opinion these proposed instructions have merit. The model jury instructions include the following:
“If you find that punitive damages are to be awarded against the defendant, you must then determine the amount to be awarded. In doing so, you must find the amount that you are persuaded by clear and convincing evidence is fair and reasonable under the circumstances. In making that finding, you may take into consideration one or more of the following factors to the extent you find them rele-vent [sic]:
“(1) the nature of defendant’s conduct;
“(2) the impact of defendant’s conduct on the plaintiff;
“(3) the relationship between the plaintiff and defendant;
“(4) the likelihood that the defendant would repeat the conduct if a punitive award is not made;
“(5) the defendant’s financial condition; and
“(6) any other circumstances shown by the evidence, including any circumstances of mitigation, that bear on the question of the size of any punitive award.
“The purpose of punitive damages is to punish and deter, not to vanquish or annihilate the defendant. Although there is no fixed mathematical formula for you to use in determining the amount of a punitive award, you should strive to set the amount of any award at a level that you determine imposes a fair and reasonable punishment for the amount and type of injury that you find that the defendant has caused the plaintiff. * * *” American College of Trial Lawyers, Report on Punitive Damages of the Committee *44on Special Problems in the Administration of Justice (March 3, 1989), at 28.
In any event, I believe that the responsibility rests upon counsel to request instructions on punitive damages which conform to the law and which offer guidance to the jury. Otherwise jurors are left with an almost unbridled discretion. When that discretion results in a lawful verdict that seems high, it is not within the province of an appellate court to substitute its view for that of the jury.