concurring in the result.
I concur in affirming the district court with the condition Mr. Boerner accept a remittitur on the punitive damage award. Because I reach such result on different grounds, I write separately to explain my position.
I
I disagree with the Court’s analysis regarding the excessiveness of this punitive damage award. In Eden Electrical, Ltd. v. Amana Co., 370 F.3d 824, 829 (8th Cir.2004), we affirmed a punitive damage award approximately 4.5 times greater than the compensatory damage award, despite the substantiality of the latter. To be sure, Eden’s 4.5:1 ratio may crowd constitutional limits. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (“When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.”). But it does not exceed the single-digit ratio the Supreme Court has intimated as setting the constitutional limit for all cases, id., save those where “ ‘a particularly egregious act has resulted in only a small amount of economic damages [or where] the injury is hard to detect or the monetary value of noneconomic harm may have been difficult to determine,’ ” id. (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 582, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)), and we justified the 4.5:1 ratio in Eden because the case involved an “extraordinarily reprehensible scheme to defraud.” Eden, 370 F.3d at 829.
Here, the ratio between compensatory and punitive damages is less than four to one, and I have trouble reconciling a reduction in this award with our affirmance in Eden. The Court distinguishes Eden on *605the grounds Amana “intended to victimize” Eden, while American Tobacco merely “exhibited a callous disregard for the adverse health consequences of smoking.” Ante at 603. I find the rationale less than satisfying. Eden involved purely economic harm. This case not only involves personal injury rather than economic harm, but personal injury of a very serious nature — a wrongful death. Thus, while American Tobacco’s level of intent may not be quite as egregious as Amana’s (and even that is arguable), the consequence of its conduct far outweighs any considerations tied to its marginally less culpable state of mind. We have more reason to be outraged by American Tobacco’s callous disregard for Mary Jane Boerner’s life than we would, for example, if it had intentionally pilfered all her money.
In addition, I am troubled by the Court’s incomplete discussion of the factors justifying a higher ratio between punitive and compensatory damages. It notes the absence of two factors — the presence of an injury which is hard to detect, or a particularly egregious act resulting in only a small amount of economic damages. Ante at 603. But it fails to discuss the presence of a third, that is, where the monetary value of noneconomic harm is difficult to determine. Such a factor clearly applies to suits involving personal injury and wrongful death. See, e.g., Stafford v. Neurological Med., Inc., 811 F.2d 470, 475 (8th Cir.1987) (noting deceased’s suicide resulting from misdiagnosis was “an injury not easily calculable in economic terms”). I suggest the presence of this one factor alone brings this award within the constitutional limits of due process. See Bielicki v. Terminix Int’l Co., 225 F.3d 1159, 1165 (10th Cir.2000) (approving a 12:1 ratio between punitive and compensatory damages in a personal injury case); Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1273 (10th Cir.2000) (approving a 59:1 ratio between punitive and compensatory damages in a personal injury case); Burton v. R.J. Reynolds Tobacco Co., 205 F.Supp.2d 1253, 1263-65 (D.Kan.2002) (approving a 75:1 ratio between punitive and compensatory damages in a personal injury suit against tobacco company).
Even if this case did not fall within the specific exception the Supreme Court carved out for cases involving difficult-to-determine noneconomic harm, the mere fact this case involves physical injury rather than economic harm makes it difficult to reconcile our remittitur here with our af-firmance in Eden. The Supreme Court listed five factors for the courts to consider when judging the degree of reprehensibility of a defendant’s conduct: 1) whether it caused physical rather than economic harm; 2) whether it evinced an indifference to or a reckless disregard of the health or safety of others; 3) whether its target was financially vulnerable; 4) whether it involved repeated actions rather than an isolated incident; and 5) whether its harm resulted from intentional malice, trickery or deceit, rather than mere accident. State Farm, 538 U.S. at 419, 123 S.Ct. 1513 (citing Gore, 517 U.S. at 576-77, 116 S.Ct. 1589).
In affirming the 4.5:1 ratio in Eden, we discussed the presence of just one of those five factors — intentional malice. See Eden, 370 F.3d at 829. Yet despite the presence of several of the five factors in this case — physical harm,-callous disregard to the health and safety of others, repeated incidents of wrongful conduct spanning decades, and calculated deceit — we remit. In sum, I find no principled basis for concluding this award is excessive when compared with our affirmance- of the punitive damage award in Eden.
II
Despite my reluctance to agree with- the Court’s application of State Farm and *606Gore, and its distinction of Eden, I find myself agreeing with the result it reached for another reason. Ironically, I reach the same result because of a second disagreement I have with the majority’s analysis, that is, its rejection of B & W’s argument on instructional error.
In State Farm, the Supreme Court said: “Due process does not permit-courts, in the calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant [because punishment] on these bases creates the possibility of multiple punitive damages awards for the same conduct; for in the usual case nonparties are not bound by the judgment some other plaintiff obtains.” 538 U.S. at 410, 128 S.Ct. 1513. Pursuant to State Farm, B & W asked the district court to instruct the jury it could “only award punitive damage based upon conduct ... which had some connection to the harm claimed by the plaintiff.”
The district court refused to give that portion of B & W’s requested instruction, instead using the Arkansas Model Instruction on punitive damages. B & W argued the district court violated its due process rights, when it failed to limit the punitive damage instruction per State Farm because the evidence at trial referred to conduct other than what was directed at Mrs. Boerner. For example, Boerner 1) emphasized the harm smoking causes nationwide, specifically 'referring to 450,000 deaths annually, 2) indicated cigarettes are the number one preventable killer in the United States, and 3) introduced the Surgeon General’s Reports which described other patients’ cancer diagnoses and tobacco-related diseases.
I believe B & W has a valid point. This case is quite similar to State Farm, which also involved evidence of the harm State Farm’s wrongful conduct caused on a nationwide basis. To be sure, such evidence is relevant to prove the reprehensibility of a defendant’s conduct, and in this case Mr. Boerner undoubtedly offered the evidence to prove just that about American Tobacco’s conduct, as well as to establish the causal relationship between cigarettes and Mrs. Boerner’s cancer. But State Farm clearly indicates such evidence can not be considered when determining the amount of punitive damages for the specific harm suffered by a plaintiff. I do not believe the punitive damages instruction given by the district court sufficiently limited the jury’s consideration to the damages suffered by Mrs. Boerner.
III
I acknowledge a remittitur normally should not be used to cure an instructional error. See Werbungs Und Commerz Union Austalt v. Collectors’ Guild, Ltd., 930 F.2d 1021, 1027-28 (2d Cir.1991) (“Remitti-tur is appropriate to reduce verdicts only in cases in which a properly instructed jury hearing properly admitted evidence nevertheless makes an excessive award [and] is not designed to compensate for excessive verdicts in cases where [instructional] error has infected the jury’s entire consideration of the evidence on damages.”) (internal citation and quotations omitted). The proper remedy for instructional error is a new trial on damages. See Jacoby v. Johnson, 120 F. 487, 488 (3d Cir.1903).
As a result, I would normally be reluctant to agree with the Court’s remittitur (based on excessiveness) as a means to reduce the award for amounts not specifically attributable to the harm suffered by Mrs. Boerner (based on instructional error). In this case, however, the instructional error would have only affected the amount of punitive damages awarded. So, if a remittitur was ever appropriate to cure *607an instructional error, this would be the case.
Moreover, a defendant can consent to a remittitur in lieu of a new trial to cure an instructional error. See id. (“The defendant is entitled to have the damages assessed by a jury under proper instructions by the court. Of this right the defendant cannot be deprived without his own consent”) (emphasis added). At oral argument, B & W’s counsel agreed, when asked, that the court could grant a remitti-tur to cure the instructional error discussed above. Based on B & W’s acquiescence, therefore, I believe a remittitur is appropriate in this case, and agree with the amount of remittitur ordered by the Court.
IV
Because of the reasons discussed, I concur in the result.