concurring in part and concurring in the judgment.
I concur in the bulk of Judge Restani’s opinion. I also concur in the judgment. I write separately to express my views on certain aspects of this appeal.
A. Formed v. Sheet Metal B-Pillar
I do not agree that the evidence on the type of metal used in the B-Pillar supports a finding of punitive damages in this case. There is no testimony in the record that supports the view that the B-Pillar is made of sheet metal or “formed sheet metal.” The only testimony in the record on the B-Pillar’s construction comes from Billy Peterson. After testifying that the pillar is made of formed metal, he testified as follows:
Q. I just want to make sure that’s clear. That’s not unformed. Unformed is sheet metal that you can wave like this because it hasn’t been stamped yet, right?
A. Unformed means it’s a straight piece of metal.
Q. And straight metal is substantially weaker than once you put it in a form; correct?
A. Well, when you say substantially, sir, it depends on what kind of forming and how much you do.
Q. All right. Let me ask this question. If it’s formed, is it stronger than when it’s not formed?
A. Yes, sir.
J.A. at 324-25. The B-Pillar is made of formed metal. My review of the record shows no evidence as to how much stronger formed metal is than sheet metal, nor did Plaintiff establish the difference in performance in an accident between sheet metal and formed metal. In my view, this absence of proof means that the only facts that support the award in this case is the fact that Chrysler did not use a boxed B-Pillar design. While Chrysler may well be negligent for its failure to use a boxed B-Pillar design, I have some difficulty in affirming a punitive damage award on that basis alone, as I am not convinced that Chrysler had the requisite knowledge of its negligence. In light of our previous panel’s decision affirming punitive damages, however, and the unclear nature of the Supreme Court’s remand, I am willing to concur in Judge Restani’s waiver holding and address only the amount of the punitive damages, not whether punitive damages are warranted at all.
*613B. Level of Punitive Damages
After recognizing that other courts have reduced punitive damages to a one-to-one ratio because the compensatory damages in those cases were substantial, Judge Restani’s opinion concludes that the halved damage award here of $235,629.13 is “not very substantial.” I cannot agree with this conclusion. The Supreme Court has instructed that:
because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where “a particularly egregious act has resulted in only a small amount of economic damages.” Ibid,.; see also ibid, (positing that a higher ratio might be necessary where “the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine”). The converse is also true, however. 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.
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513 (2003) (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 582, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)).
In evaluating whether a damage award is substantial under a comparative fault regime, I believe that we should use the total compensatory award in evaluating whether the award is substantial. Using an award apportioned by the fault of the parties could have the effect of finding an award that is substantial as a whole, insubstantial when it is apportioned. For example, assume we have a case with three tortfeasors, each one quarter at fault. Assume that we have a victim, who is also one quarter at fault. The victim is awarded $1 million dollars in damages (an award the Supreme Court has found to be substantial, see id. at 426, 123 S.Ct. 1513). If the award were looked at after apportionment of fault (i.e. each tortfeasor’s $250,000 portion of the total award), it is possible that no single tortfeasor’s portion of the award would be substantial, indeed under Judge Restani’s opinion, those portioned awards would likely not be found to be substantial. This result is incongruous because the victim in my hypothetical would still be receiving a substantial damage award in total (over $750,000 of the original $1 million award), even though each tortfeasor’s portion of the award might not be substantial. Thus, I believe that this court should use the full $471,258.26 award in evaluating whether the compensatory damages are substantial. In light of the case law cited by Judge Restani, which found awards as low as $600,000 to be substantial, I cannot concur in her conclusion that the award in this case is “not very substantial” as I find no discernible difference between a $600,000 award and a $471,258.26 award.
I would reach this conclusion even if the halved compensatory damage award were used, as I believe that $235,629.13 is also a substantial compensatory award. I would reach this conclusion because I do not believe that an award of $235,629.13 of compensatory damages falls into either of the Supreme Court’s categories, in that it is not a “small amount of economic damages,” nor is it a case where “the injury is hard to detect or the monetary value of noneconomic harm ... difficult to determine.” State Farm Mut. Auto. Ins. Co., 523 U.S. at 425, 118 S.Ct. 1428 (citing Gore, 517 U.S. at 582, 116 S.Ct. 1589). Even today, $235,629.13 could not be described as a “small amount,” and because in this case, the injury was obvious and the monetary value of the harm is something *614that courts and juries routinely calculate, the monetary value cannot be described as “difficult to determine.” Id.
I can, however, despite this disagreement, concur in the judgment and the result reached by Judge Restani because I also believe that the punitive damages award should not be reduced by the comparative fault of Mr. Clark. The dual goals of punitive damages are to punish a tortfeasor for wrongdoing (retribution) and to deter future similar conduct. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). In this case, punitive damages punish Chrysler for a design defect in its vehicles that leads to what the parties refer to as B-Pillar twist-out. In some cases, including the instant case, B-Pillar twist-out can result in a door opening during an accident.
The previous panel found that Chrysler was aware that B-Pillar twist-outs can occur during accidents. Chrysler was also aware that doors that open during accidents lead to an increased risk of a passenger being ejected during an accident. Finally, Chrysler was aware that if a passenger is ejected during an accident, they suffer a significant increase in their risk of dying during the accident. Thus, Chrysler was aware that its unsafe design increased the risk of death to passengers in its vehicles if those vehicles are involved in accidents. Punitive damages in this case, thus, should punish Chrysler for the range of possible injuries, including death, that could result from its unsafe design. Punishing Chrysler a lesser amount based on its level of comparative fault does not appropriately punish Chrysler for the risk that results from its unsafe design, nor does it serve the goal of deterring similar future conduct by Chrysler. Its punishment is for the design defect. The risk from the design defect was the same whether the impact was on the driver’s side (with an at fault driver recovering a reduced amount due to his or her comparative negligence) or on the passenger’s side (with a passenger, not at fault, recovering a full award).
I, therefore, would not halve the punitive damages awarded to Chrysler. Consequently, I come to the same conclusion as Judge Restani that $471,258.26 is the maximum constitutional award in this case based on a one-to-one ratio of compensatory to punitive damages, and I join in her judgment.