dissenting:
I agree with most of the analysis in the carefully crafted majority opinion. But in important respects I disagree and, therefore, must dissent.
The trial judge here refused to grant a new trial sought by Merrill Lynch on grounds that the actual and punitive damages awards were grossly excessive. As an appellate court reviewing that denial, we apply the well-established abuse of discretion standard. Eg., Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir.1972); Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962). This Circuit has firmly stated that “absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the fact is considered inviolate.” Id., 305 F.2d at 228 (emphasis added). In many cases through the years we have made the same categorical statements that the judgment must be affirmed unless the award is so high that passion and prejudice must have affected the verdict. See *1182Minker v. St. Louis-S.F. Ry., 574 F.2d 1056 (10th Cir.1978); Brown v. Skaggs-Albertson’s Properties, Inc., 563 F.2d 983 (10th Cir.1977); Metcalfe v. Atchison, T. & S.F. Ry., 491 F.2d 892 (10th Cir.1974); Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir.1972); Ketchum v. Nall, 425 F.2d 242 (10th Cir.1970); Lane v. Gorman, 347 F.2d 332 (10th Cir.1965); Greyhound Corp. v. Jones, 327 F.2d 904 (10th Cir.1964); Franklin v. Shelton, 250 F.2d 92 (10th Cir.1957), cert. denied, 355 U.S. 959, 78 S.Ct. 544, 2 L.Ed.2d 533 (1958); E.L. Farmer & Co. v. Hooks, 239 F.2d 547 (10th Cir.1956), cert. denied, 353 U.S. 911, 77 S.Ct. 669, 1 L.Ed.2d 665 (1957); Chicago, R.I. & Pac. Ry. v. Kifer, 216 F.2d 753 (10th Cir.1954), cert. denied, 348 U.S. 917, 75 S.Ct. 299, 99 L.Ed. 719 (1955); Earl W. Baker & Co. v. Lagaly, 144 F.2d 344 (10th Cir.1944).
If the verdict is the result of passion and prejudice we must reverse and send the case back for a new trial. Minneapolis, St. P. & S.S.M.R. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243 (1931); 11 Wright & Miller, Federal Practice and Procedure, § 2815 (1973); 6A Moore’s Federal Practice 159.05[3], p. 59-59 (1979). In Moquin, the Supreme Court forbade the use of remittitur in a case where the verdict was found excessive as a result of passion or prejudice. As explained in Moquin,
“no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice. Obviously such means [prejudicial conduct] may be quite as effective to beget a wholly wrong verdict as to produce an excessive one. A litigant gaining a verdict thereby will not be permitted the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent.”
283 U.S. at 521-22, 51 S.Ct. at 502.
Appellate courts have ordered remittiturs when reversible error is found in the trial proceedings, the effects of which can be reasonably approximated to either a definite portion of a verdict or a maximum amount. See 6A Moore’s Federal Practice 159.05(3) (1979). We did that in R.E.B., Inc. v. Ralston Purina Co., 525 F.2d 749 (10th Cir.1975), when erroneous instructions resulted in the jury awarding double recovery. See also Allied Materials Corp. v. Superior Products Co., 620 F.2d 224 (10th Cir. 1980). I recognize that some other appellate courts seem to have gone further and substituted their judgment for that of a jury or trial judge, when they considered the damages merely excessive. E.g., Abernathy v. Southern Pac. Ry., 426 F.2d 512 (5th Cir.1970); Lanfranconi v. Tidewater Oil Co., 376 F.2d 91 (2d Cir.1967).
The instant case is not one in which we can reasonably approximate the amount of the jury’s error without acting as a second jury. The awards at issue here — -for emotional suffering and punitive damages — are of such indeterminate character that there are no criteria for segregation. We have only our overall impressions to guide us, our judicial conscience. I do not trust the personal opinion of appellate judges, including myself, based on a review of the written record only, to fine-tune damages awards in such a case; but I can determine whether an award is so excessive as to shock my judicial conscience and raise the irresistible inference that passion and prejudice affected the jury verdict.
This is such a case, I believe, and I think the proper approach is to remand for retrial so that new fact-finders can assess the proper damages to award. The actual damages award made in this case profoundly shocks me to the extent I am convinced passion and prejudice entered into the determination. The world has changed a great deal since a judgment of $5,000 for the death of a six-year old would be challenged as excessive. See, e.g., Earl W. Baker & Co. v. Lagaly, 144 F.2d 344 (10th Cir.1944). Still, apparently the largest verdict for emotional stress ever awarded in Colorado is $30,000. Merrill Lynch claims the largest award previously made in the United States is $60,000, when there was no physical injury or death. One publication specializing in reporting personal injury verdicts indicates awards as high as $90,000 *1183for intentional infliction of mental suffering, though it is not apparent whether physical injury occurred there. 2A Personal Injury Valuation Handbooks 1455 (1976). Here the award for mental suffering is $1,000,000. This figure appears to have been plucked from the air; it is not supported by any documentation. Mrs. Malandris’ condition required neither hospitalization nor professional care at home. Indeed, we have no evidence she saw any doctor other than the psychiatrist who testified for her at trial. She was able to attend the trial and to be a witness, although she cried a lot on the stand. The record shows her neurosis stemming from the Merrill Lynch incident was preceded by emotional problems relating to a host of other personal troubles.
The same infirmity seems to apply to the punitive damages award. I am not prepared to say a $3,000,000 award against a national corporation is excessive in all circumstances. Relevant to corporate liability for punitive damages is the management level of the officials who participated in the tort or who could be regarded as culpable. Here only Barron’s immediate supervisors were inculpated to any degree, and the evidence against them merely suggests they disregarded proper safety procedures established by the company. Considering the low level of corporate involvement in this case, I am convinced that this $3,000,000 punitive damages award is a product of passion and prejudice.
In reaching my conclusions I am also influenced in part by several highly inflammatory moments during the trial. During Barron’s testimony on the pivotal issues of the case, Mrs. Malandris began crying and screaming. As the jury was being removed from the room because of that incident, Mr. Malandris jumped up and yelled that he would kill Barron and that Barron was a liar. (App. 721-23). This dramatic scene was preceded by a brief direct examination of Mrs. Malandris, during which she apparently wept at nearly each question. (App. 556-61). Another incident involved Mr. Malandris. During cross-examination, confronted with the fact that his deposition conflicted with his testimony that he never read the New York Times, Malandris replied,
“That is not true. You are saying things. If you want to say it, say it.
“I’m talking, not you. I’m not no match for no 20 people in college. If you want to trick me, fine, you can do it, trick me, it is a very easy thing to do. Make you feel like a big man, just do it, fine.”
Upon being cautioned to just answer the question, Malandris replied: “I’m sorry. I have never read the New York Times. God help me, so help me, let me die in this chair.” (App. 404-05).
Because punitive damages were sought, counsel for Malandris was allowed to comment to the jury on Merrill Lynch’s considerable net worth. On the other hand, because Malandris’ emotional distress resulted from her loss of financial security, her extremely impoverished life was presented. Counsel requested the jury to
“send a message, a warning, a deterrent to this country, to this state, to this city, to New York, to Chicago, to San Francisco, to Los Angeles, telling those people who were entrusted with the life savings of others that they shall not conceal— they shall not bear false witness to signatures. They shall not gamble with other people’s money. They shall not take advantage of the uneducated.”
(App. 863).
I believe that the foregoing events, combined with the grossly excessive awards, amply demonstrate that passion and prejudice invaded the trial. This being so, the proper action on our part is to order a new trial.