concurring in part and dissenting in part. I concur with the majority on the third (Appealability of Remittitur by Plaintiffs) and fifth issues (Post-Judgment Interest Relief), but respectfully dissent on the first (Evidentiary Issues), second (Excessiveness of Punitive Damages Award), and fourth issues (The Remittitur in this Case).
Excessiveness of Punitive Damages
and
The Remittitur in this Case
I believe that the damages award in this case is, in essence, an award based on a wrongful death — the fact that Michelle Wightman was killed in this accident. Under Ohio law, punitive damages are not permitted in wrongful death cases. See Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 23, 8 O.O.3d 11, 13, 374 N.E.2d 411, 413; Schaefer v. D & J Produce, Inc. (1978), 62 Ohio App.2d 53, 57, 16 O.O.3d 108, 111, 403 N.E.2d 1015, 1018-1019. The majority avoids addressing this issue, carefully referring only to the property damage of $2,400 as the point of comparison. Yet, the majority frequently refers to the “harm” created by the accident, such as referring to Conrail’s actions as “a practice that could result in massive property damages, physical injuries, and untold psychological pain.” By distinguishing this case from BMW of N. Am., Inc. v. Gore (1996), 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809, on the basis of health and safety issues, the majority implicitly sanctions the punitive damages award for the wrongful death, not the comparatively minor property loss.
By affirming an award of punitive damages that is 6,250 times the property damage award (even after remittitur), this court may encourage plaintiffs in wrongful death cases to include a property damage claim, no matter its value, to *449use as a basis to recover exorbitant punitive damages. The result is, in essence, a judicially endorsed negation of Ohio’s wrongful death statute. This court has now implicitly sanctioned punitive damages for wrongful death, despite the fact that a wrongful death claim exists only by statute and does not provide for punitive damages.
Since the majority does not directly address this issue, presumably, the principle of law still stands that punitive damages cannot be awarded in a wrongful death claim. To the extent that the majority intended otherwise, I dissent.
Evidentiary Issues
I believe that Conrail was wrongfully denied due process when it was not allowed to present a full defense in the remand trial. The Ohio Constitution mandates that due process be afforded to all litigants. “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean (1914), 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363, 1369. See, also, Mathews v. Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32 (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”); Brock v. Roadway Express, Inc. (1987), 481 U.S. 252, 261, 107 S.Ct. 1740, 1747, 95 L.Ed.2d 239, 250.
For over a century, the law in Ohio has been that when awarding punitive damages, a jury should consider all evidence, both aggravating and mitigating. Schneider v. Hosier (1871), 21 Ohio St. 98, 113-114. Due process and fundamental fairness require that the jury be informed of all of the circumstances in order to fully evaluate the defendant’s conduct. Yet Conrail was prevented from presenting an effective defense because the trial judge in the retrial on the punitive damages issues excluded much of the testimony from the original trial. The second jury, in essence, heard only plaintiffs version of the events.
I agree that to some degree an award of punitive damages may have been proper in the case. The majority clearly set forth the shortcomings of Conrail in this matter. But Michelle Wightman was not without fault. There was testimony in the original case that had Wightman exercised caution, she could have avoided this accident. Yet this jury heard none of this evidence.
In fact, the original jury found that Wightman was forty percent responsible for the accident. That jury heard evidence that Wightman was a young, inexperienced driver, having had her license for only six months. That jury heard how she had drunk two cans of beer and three wine coolers, supplied by her mother, before the accident. They also heard from another expert, Dr. Herbert Moskowitz, that this combination of factors increased Wightman’s risk of accident by five hundred percent. That jury also had a vehicle dynamics event *450analysis from expert Deane H. Ellsworth that an unimpaired driver proceeding at her speed would have had time to see and avoid the oncoming train. The jury on remand was entitled to know that another jury had earlier found Wightman to be forty percent contributorily negligent.
We do not know if the jury on remand, had it heard all of this evidence on remand, would have awarded the same amount of punitive damages. But we do know that the first trial judge, who did hear this evidence, refused to award any punitive damages at all — a sharp contrast to the second verdict of $25 million. That alone creates a very strong presumption of prejudice. By hearing Dr. William Berg’s testimony only and no contradicting opinion on whether the accident was avoidable, the jury had no opportunity to judge the credibility of that testimony. Only by hearing all of the testimony could the jury on remand have effectively evaluated (1) whether to award any punitive damages, and (2) if so, how reprehensible Conrail’s conduct was in light of the evidence adduced at the original trial that Wightman could have avoided the accident. Evidence of Wightman’s contributory negligence was not sufficient to excuse Conrail from compensatory liability, but it may well have been sufficient to excuse Conrail from a punitive damages award. This grossly one-sided presentation denied Conrail any due process or fundamental fairness in this trial.
For the reasons above, I believe that the verdict was sorely tainted. I would reverse and remand on the evidentiary and excessiveness issues for a full and fair retrial.