dissenting. I must respectfully dissent, as I would affirm in large measure the decision of the court of appeals.
I
In Part I of the majority’s opinion there is found a scholarly discussion of the criteria for punitive damages and an excellent discourse on the concept underlying the tort of spoliation of evidence. I agree that any professional, whether doctor, lawyer, or accountant, found to have committed spoliation with the intent to defraud or otherwise injure a patient or client may be subject to a claim for compensatory or nominal damages coupled with a claim for punitive damages. Further, I see no problem combining a traditional malpractice suit with a cause of action alleging spoliation of evidence. However, I do not agree with the majority’s decision to permit punitive damages in a negligence action, because the subsequent spoliation of records does not make the original act of negligence malicious.
My major concern with the majority’s opinion is its treatment of the facts surrounding the alleged spoliation. I agree with the suggestion in the majority’s' opinion that if “records were altered, destroyed or concealed by Dr. Figgie in an effort to conceal his medical negligence,” an award of punitive damages may be justified in a separate cause of action. However, the question whether Dr. Figgie *668“altered certain records to conceal the fact that malpractice occurred” was a hotly disputed issue at trial, an issue vigorously rebutted with lengthy testimony by Dr. Figgie and his nurse. As is trué with the determination of any significant fact, it was the province of the jury to make a finding and return a verdict on the issue of the alleged spoliation of evidence. Such a determination is not our task. What the majority overlooked, presumably, is that the trial judge did not include in his charge to the jury one single word concerning this hotly disputed issue of spoliation. Indeed, the entire jury charge dealt strictly with medical malpractice. The plaintiff neither pleaded a cause of action for spoliation nor asked for instructions on spoliation.
I also do not agree with the majority that “[i]f appellant were constrained to bring a separate cause of action for spoliation of evidence, that claim would inevitably fail since there is no damage flowing directly from the alteration of records.” Some measure of damages will flow inevitably from the alteration of records when the alteration is done to avoid liability for the physician’s medical negligence. At the very least, the plaintiff may have to expend additional time and effort to reconstruct the original records. Since the purpose of the spoliation is to avoid liability, the plaintiff’s ability to succeed in the negligence action may be made more difficult because of the spoliated records. This harm can be seen in the present case. Dr. Figgie relied on his version of the records to claim that he was not negligent because he had advised appellant to have a biopsy but she refused his advice. The inclusion of this statement in his records may have made appellant’s claim more difficult to prove. When a physician commits spoliation of evidence to avoid liability for his or her medical negligence, the patient is automatically entitled to at least nominal damages. In some cases, for example where the spoliation impairs the future course of treatment of the patient, more than nominal damages may also result.12
Therefore, I would hold that a party must plead a separate cause of action for the tort of spoliation of evidence. The jury should be instructed that if it finds the defendant altered or destroyed records with the purpose of avoiding liability for his or her negligence, the jury must award at least nominal damages. The *669jury may then proceed to the question of punitive damages. In such a situation, the test of Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, can be met as the jury can properly find that actual malice occurred due to the defendant’s “conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” The great probability of substantial harm to the plaintiff is that an otherwise meritorious action for negligence will be defeated due to the tortious conduct of the defendant.
Suffice it to say, contrary to the conclusion reached by the majority following its review of the record, the jury did not make a finding that Dr. Figgie was involved in spoliation.13 Without such a finding and verdict, which would be tantamount to a finding of malicious intent or reckless disregard, there exists no basis for punitive damages. Thus, the court of appeals correctly found that punitive damages were inappropriate in this case, as this was a cause premised on negligence.
In addition to the foregoing, I note that the trial judge was well aware that the jury’s total award of $3 million in punitive damages at best equalled and probably far exceeded Dr. Figgie’s net worth. I believe the punitive damage award in this case violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See TXO Production Corp. v. Alliance Resources Corp. (1993), 509 U.S.-, 113 S.Ct. 2711, 125 L.Ed.2d 366; Pacific Mut. Life Ins. Co. v. Haslip (1991), 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1; BroumingFerris Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219.
II
The jury award of punitive damages having been determined to be without basis, it is perfectly clear that, as stated by the court of appeals, the compensatory damage award was excessive and the product of passion and prejudice. I am convinced that, as the court of appeals pointed out, “the jury’s survivorship award [of $2 million] was impermissibly influenced by the jury’s erroneous consideration of punitive damages.” I also agree fully with the court of appeals that the jury’s wrongful death award of $1.25 million was “manifestly excessive.”
This court consistently has ruled that where an excessive verdict is the product of passion and prejudice, a new trial must be granted. Larrissey v. Norwalk Truck Lines (1951), 155 Ohio St. 207, 44 O.O. 238, 98 N.E.2d 419, paragraph four of the syllabus. We have emphasized, for example, that “[i]n a trial of a negligence action * * * deliberate and persistent appeals to the sympathy of the *670jury, either directly or indirectly, are improper, as tending to induce either excessive or inadequate verdicts as a result of such appeal to the passion or prejudice of the jury.” Book v. Erskine & Sons, Inc. (1951), 154 Ohio St. 391, 43 O.O. 334, 96 N.E.2d 289, paragraph one of the syllabus. Thus, “where the damages awarded are excessive and appear to have been given under the influence of passion or prejudice, the resulting prejudice cannot be corrected by remittitur, the only recourse is the granting of a new trial.” (Emphasis added.) Id. at paragraph two of the syllabus. See, also, Guccione v. Hustler Magazine, Inc. (Oct. 8, 1981), Franklin App. No. 80AP-375, unreported, at 33, 1981 WL 3516.
Even a cursory review of the record reveals that counsel for Moskovitz leveled “deliberate and persistent appeals to the sympathy of the jury,” referring repeatedly, for instance, to Mrs. Moskovitz’s confinement in a Nazi concentration camp during the Second World War. The record also indicates that plaintiffs counsel made the spoliation claim, not the malpractice claim, the primary focus of the trial. Moskovitz’s counsel devoted most of his cross-examination of Dr. Figgie, ninety pages of testimony, to the alteration of Moskovitz’s medical records. In opening statements and again in closing arguments, counsel for Moskovitz emphasized and reemphasized the issue of spoliation, alluding many times to Dr. Figgie’s cover-up and the “smoking gun.” Throughout the trial, counsel for Moskovitz repeatedly attempted to direct the jury’s attention to the allegation that Dr. Figgie had tried to conceal his negligent treatment of Moskovitz by subsequently altering the medical records. But despite this pattern of conduct, as previously stated, the trial court never instructed the jury on the matter of spoliation or gave a limiting instruction thereon. Not even a suggestion of the spoliation issue exists in the trial court’s charge to the jury.
In light of the foregoing, I believe the court of appeals correctly found that the jury was wrongfully influenced and that both the compensatory damage award and the award of punitive damages were excessive and the result of passion and prejudice. Therefore, I feel the court of appeals properly remanded the case to the trial court for a new trial on the issue of compensatory damages.
Ill
I must also address the majority’s position on prejudgment interest and the majority’s treatment of Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 616 N.E.2d 181.
The majority begins its discussion of this issue by declaring that a common-law right to prejudgment interest existed in Ohio and, therefore, contrary to a recent decision of this court, a prejudgment interest proceeding is not considered a “special proceeding” for purposes of R.C. 2505.02. Thus the majority concludes, *671in paragraph four of the syllabus, that “[a]n order compelling or denying discovery in an R.C. 1343.03(C) proceeding for prejudgment interest does not meet the definition of ‘final order’ set forth in R.C. 2505.02.”
This statement by the majority attempts to modify a decision issued by this court just last term. In Bell we were faced squarely with the question of whether an order for discovery in a prejudgment interest hearing was a final appealable order.
The issue we addressed in Bell, however, is not an issue before this court todáy. Rather, the question we must answer today is whether the award of prejudgment interest was appropriate in this case. We have not been asked to consider the appealability of an order issued during a prejudgment interest hearing. Hence, the lengthy discussion engaged in by this court concerning the appealability of an order issued during a prejudgment interest hearing is nothing more than dicta. Given the recent issuance of the Bell decision, the present case is not the proper forum for such a discussion. Members of this court had ample opportunity to express any reservations concerning that issue during our consideration of Bell, which was decided by six members of this court with the seventh member concurring in judgment only. At a minimum, because it does not address an issue before this court, the dicta should be removed from the syllabus.
I also take issue with the majority’s decision of the relevant prejudgment interest question.
It is well-settled law that the decision to award prejudgment interest lies within the sound discretion of the trial court. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 19 OBR 123, 482 N.E.2d 1248. That decision will not be reversed by a court of appeals unless the record reflects an abuse of discretion by the trial court. Kalmn v. Smith (1986), 25 Ohio St.3d 157, 25 OBR 201, 495 N.E.2d 572. The phrase “abuse of discretion” is a term of art defined long ago to mean “more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.” Steiner v. Custer (1940), 137 Ohio St. 448,19 O.O. 148, 31 N.E.2d 855, paragraph two of the syllabus. Clearly then, the decision of the trial court in this case should remain undisturbed unless that decision was tainted by an unreasonable, arbitrary, or unconscionable attitude.
In my judgment there is no evidence of any abuse of discretion here. The trial court denied Moskovitz’s motion for prejudgment interest only after conducting a lengthy hearing on the matter. During the hearing both sides had adequate opportunity to present their evidence and arguments. Considering the strong disagreement between the parties with respect to several significant facts as well as the lengthy testimony and evidence presented by Dr. Figgie in rebuttal to Moskovitz’s charges, plainly the trial court did not abuse its discretion in *672concluding that Dr. Figgie had a good faith, objectively reasonable belief that he was not liable. Based on this conclusion I believe the trial court properly held that Dr. Figgie was not obligated, pursuant to Kalain, to offer Moskovitz a monetary settlement offer, and that the failure to do so did not reflect a failure of good faith and, of course, did not warrant an award of prejudgment interest.
IV
I strongly believe that the court of appeals correctly reversed and vacated the punitive damage award, reversed the compensatory damage award and remanded the compensatory damage issue for a new trial, and affirmed the denial of the motion for prejudgment interest. Thus, for the foregoing reasons I would affirm the judgment of the court of appeals in part but remand for a new trial on the issue of compensatory damages and the issue of spoliation.
Moyer, C.J., and A.W. Sweeney, J., concur in the foregoing dissenting opinion.. To presume damages arise from the intentional tort of spoliation of evidence is consistent with the long-standing presumption for other intentional torts such as assault, battery and defamation. “[EJvery injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury.” Ashby v. White (King’s Bench 1703), 2 Ld.Raym. 938, 955 (Holt, C.J., dissenting). Holt’s position prevailed, as the majority was reversed by the House of Lords (1703), id. at 958.
. In its first paragraph, the majority asserts that Dr. Figgie “altered certain records to conceal the fact that malpractice had occurred,” as if the jury made a specific finding on this issue.