dissenting.
In its haste to place its imprimatur on this outrageous verdict by a Clay County “runaway” jury and, presumably, to redistribute the wealth of an out-of-state corporation with requisite deep pockets to stimulate the economy of eastern Kentucky, the majority opinion ignores the facts of this case, our own long-standing precedents, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution as interpreted by the United States Supreme Court.
This accident occurred on September 2, 1993, at a strip mine site owned by Sand Hill Energy, Inc., near Mud Lick in Clay County, Kentucky. This particular site was a new operation that Sand Hill had only opened in August 1993, a few weeks prior to the accident. Tommy Smith was hired by Sand Hill as a general laborer on August 27, 1993, six days prior to the accident. His rate of pay was $7.50 per hour for an average work week of 51.5 hours. The extent of his education was not established. He was thirty years old and had previously worked in a sawmill, in his father-in-law’s retail store, in a cabinet shop, and as a general construction laborer. Although a life expectancy of 42.8 years was stipulated, no evidence was introduced to extrapolate Smith’s earning potential from Ms education and work history or to otherwise prove the value of the loss of his power to labor and earn money, which, of course, is the measure of damages for wrongful death. Luttrell v. Wood, Ky., 902 S.W.2d 817, 819 (1995); Dept. of Ed. v. Blevins, Ky., 707 S.W.2d 782, 783 (1986). Smith’s wages and hours at the time of his death, including overtime, would have produced a gross income of $22,327.76 per year. That income maintained over 42.8 years would have produced a total gross income of $955,628.12. Despite any evidence to support a larger award, the instructions to the jury did not limit the maximum award to the amount proven, and the jury’s verdict awarded Smith’s estate the sum of two million dollars ($2,000,000.00) for the loss of his power to labor and earn money.1
*502Wayne Napier, vice-president of Sand Hill and the foreman/supervisor of the Mud Lick strip mine operation, testified that on the morning of September 2, 1993, he instructed Smith to load twenty-five bags (1,250 pounds) of ammonium nitrate from a free-standing semi-trailer used for the storage of explosives onto a 1977 Ford F-250 pickup truck for transport to another location on the mining site. When he returned some time later, Napier found Smith pinned between the closed doors of the storage trailer and the rear end of the pickup truck. The truck’s engine was running, and the vehicle was “quivering.” Napier jumped into the cab of the truck, instinctively shifted the transmission to “drive,” and moved the vehicle several feet away from the trailer, releasing Smith’s body. Smith was unconscious and not breathing. Napier thought he felt a pulse in Smith’s arm and unsuccessfully attempted cardiopulmonary resuscitation (CPR). Napier testified that he did not know whether Smith was alive or dead during any of this time. Smith was transported by ambulance to a local hospital where he was pronounced dead. It was stipulated at trial that Smith’s death was caused by injuries sustained in the accident but that “there is a dispute as to the exact time of death after the accident occurred.” No medical testimony was presented in this case, and no other evidence was offered to prove that Smith survived the initial impact or, if he did so, that he ever regained consciousness.
“There can be no award for pain and suffering during a state of unconsciousness, as pain must be experienced.” 22 Am.Jur.2d Damages § 241 (1988). Thus, “[pjain and suffering are not proper elements of damages where the decedent was unconscious from the time of the injury until death occurred, for the reason that there was no consciousness of any pain.” Id: § 249 (citing cases from Arkansas, Connecticut, Hawaii, Louisiana, Maryland, Massachusetts, New York, Pennsylvania, South Dakota and Texas, and a federal case interpreting the law of Wisconsin). The burden of proof was on the estate to introduce evidence not only that the decedent lived for some period of time after the accident, but also that he was conscious and suffered pain after the injury and before death. Ory v. Libersky, 40 Md.App. 151, 389 A.2d 922, 928 (1978); see also Nye v. Commonwealth, Dept. of Transp., 331 Pa.Super. 209, 480 A.2d 318, 321 (1984); Canales v. Bank of Calif., 316 S.W.2d 314, 319 (Tex.Ct.Civ.App.1958). Despite the absence of any such proof, a verdict was rendered, and judgment was entered awarding the Smith estate one million dollars ($1,000,000.00) for pain and suffering. Worldwide Equipment, Inc. v. Mullins, Ky. App., 11 S.W.3d 50, 61 (1999) (no damages are recoverable for pain and *503suffering absent evidence that the decedent survived the initial impact).
Twenty-five bags of ammonium nitrate were found in the bed of the pickup truck, and the 48-inch wide doors to the storage trailer were closed when Smith’s body was found. From these facts, the Mine Safety and Health Administration (MSHA) investigators concluded that Smith had finished loading the bags of ammonium nitrate onto the pickup truck, pulled the vehicle forward at least four feet to create clearance to close the doors of the storage trailer, exited the pickup truck but left the engine running, closed the doors to the trailer, then was killed when the pickup truck suddenly moved backwards and crushed him against the storage trailer. The pickup truck’s parking brake was not engaged because it had been rendered inoperable in an earlier accident.
Tests run on the 1977 Ford F-250 pickup truck during the MSHA investigation showed that, if left in “park” with the engine running, the vibration of the engine would sometimes cause its transmission to shift into hydraulic “reverse” which, in turn, caused the truck to move backwards at a quick speed. (There was no evidence at trial to support the majority opinion’s factual assertion that “Smith was slowly crushed to death.” Op., at 486. That “fact” is found only in the closing argument of the Smith estate’s attorney.) Disassembly of the steering column and transmission system revealed that crucial parts, including those vital to the operation of the transmission, were broken, misaligned, worn, or loose, and that others had been replaced with makeshift parts. Both the transmission and the engine had been entirely rebuilt. There was internal and external leakage of brake fluid, and the master cylinder reservoir was virtually empty. Dirt, debris and corrosion were present inside the transmission. The T-bolts, the flange casting, and the insert plate were loose, and the shift linkage was out of adjustment. MSHA fined Sand Hill $15,000.00 for three violations of the Mine Safety and Health Act, 30 U.S.C. § 801, et seq., viz:
1. Citation No. 4040480 was issued for the vehicle being left unattended with the park brake not set, in violation of 30 CFR 77.1607(n);
2. Citation No. 4041303 was issued for the automatic transmission gear shift mechanism being worn out and the indicator not synchronizing properly, in violation of 30 CFR 77.404(a);
3. Citation No. 4041301 was issued for the park brake being inoperative on the 1977 Ford, Model F-250 truck, in violation of 30 CFR 77.1605(b).
The jury found that the accident was caused solely by the defective design of the transmission system installed by Ford in the F-250 pickup truck at the time it was manufactured in 1977. In addition to the compensatory damages discussed above, the Smith estate was awarded the further sum of twenty million dollars ($20,000,-000.00) (!) in punitive damages. Without reaching the merits of the case, the Court of Appeals reversed for a new trial because of the improper allocation of peremptory strikes. The majority of this Court now reverses the Court of Appeals and affirms the jury’s verdict as to liability while paying lip service to Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). It also reinstates Sand Hill’s claim for damages for increased workers’ compensation insurance premiums that it paid after the accident and the $15,000.00 fine imposed by MSHA as a result of the accident. From these erroneous decisions, I am compelled to dissent.
*504I. FORD’S ENTITLEMENT TO A DIRECTED VERDICT.
The burden of proof was on the Appellants to prove at trial not only (1) the existence of a defective design, but that (2) the defect caused the accident and (3) a reasonable alternative design would have prevented the accident. Midwestern V.W. Corp. v. Ringley, Ky., 503 S.W.2d 745, 747 (1973); Restatement (Third) of the Law of Torts § 2(b), cmt. d (A.L.I.1998). KRS 411.310(1) creates a presumption rebutta-ble by a preponderance of the evidence (as opposed to the “bursting bubble” approach otherwise established by KRE 301) that a product is not defective if the injury, death or property damage occurred either five years after the date of its sale to a consumer or eight years after the date of its manufacture. The F-250 pickup truck involved in this accident was manufactured by Ford in 1977 and sold new that same year by Ford’s local dealer, Mid-East Ford Mercury, Inc., to Alan “Peewee” Smith. The vehicle was equipped with a C-6 model automatic transmission and a transmission selector mechanism (gear shift) mounted on the steering column. Peewee Smith drove this vehicle 143,000 miles before selling it to his employer, Sand Hill Energy, Inc., in January 1993. Smith testified that, during the more than fifteen years that he owned the vehicle, he never experienced a “park-to-reverse” incident such as demonstrated by the MSHA inspectors after this accident.
In the early 1980s, the shift socket casting on the vehicle’s steering column broke, resulting in a total inability to shift the transmission into “park” (as opposed to a “false park” situation where the transmission, having been shifted into “park,” would migrate back into “reverse”). Peewee Smith replaced the shift socket casting himself, which required him to disassemble and reassemble the entire steering column. He had never before disassembled a steering column and did not refer to the Ford instructional manual when he did so on this occasion. In 1984 or 1985, Smith had the vehicle’s transmission rebuilt by Oscar’s Transmission, a local automobile mechanical shop that was not an authorized Ford repair facility. In 1986, Smith purchased a 1979 power steering unit from a local salvage yard and installed it in the pickup truck as a replacement for the original unit. Because the 1979 unit was different from the 1977 unit, it did not fit this truck, so Smith welded a metal bracket onto the unit to hold it in place. Also in the 1980s and after the truck had been driven more than 100,000 miles, Smith removed the entire engine and had it rebuilt by another local automotive mechanical shop that also was not an authorized Ford repair facility. Smith reinstalled the rebuilt engine himself. Later, the shift socket casting he had previously installed broke, and he replaced it himself, again disassembling and reassembling the steering column. Thus, at the time Peewee Smith sold this vehicle to Sand Hill in January 1993, the original shift socket casting had been replaced twice, the transmission system had been rebuilt, the engine had been rebuilt, and the power steering unit had been replaced with a salvage unit that did not fit this truck.
KRS 411.320 provides that a manufacturer is not liable for damages substantially caused by unauthorized alteration or modification of the product whether or not the manufacturer was at fault or the product was defective. That statute is a reiteration of our common law.
It has long been the law of this Commonwealth that a manufacturer is not liable when the injuries result from the mutilation or alteration of the chattel. Such intervening conduct severs any *505causal connection between the product and the injury.
Monsanto Co. v. Reed, Ky., 950 S.W.2d 811, 814 (1997).
Wayne Napier testified that he had driven this particular Ford F-250 on numerous occasions during the eight months the vehicle was owned by Sand Hill and had never experienced a “park-to-reverse” incident, nor had any such incident been reported to him. He admitted on cross-examination that Sand Hill did not use the vehicle on the open road but only to transfer explosives and equipment from one place to another on the strip mine site. On one occasion prior to September 2, 1993, the underside of the vehicle collided with an object with such force that the collision snapped an emergency brake cable, rendering the emergency brake system inoperable. This damage was not repaired; thus, when this accident occurred, there was no emergency brake available to prevent the vehicle from backing into Tommy Smith and crushing him to death.
A. No design defect.
Naturally, the majority opinion focuses on the testimony of the estate’s professional witness, Melvin Richardson, who testified that the accident was caused by a design defect in the C-6 model automatic transmission originally installed in this particular Ford F-250 pickup truck at the time of its manufacture in 1977. Of course, even though the jury instructions required a finding that the defect in the truck’s automatic transmission existed “at the time the truck was manufactured by Ford,” the automatic transmission that was in the truck at the time of the accident was not the same as had been installed in the truck “at the time the truck was manufactured by Ford” in 1977, but as modified by Peewee Smith, himself, and as rebuilt by Oscar’s Transmission in the mid-1980s. Nevertheless, Richardson testified that many C-6 transmissions manufactured by Ford were defective in that, if a driver shifted the transmission more than 40%, but less than 60%, from “reverse” to “park,” the transmission would remain in hydraulic “neutral” and could, after some delay, migrate back into hydraulic “reverse” due to engine vibration.
Significantly, Richardson admitted that if this particular truck had been properly maintained and if Smith had shifted the transmission all the way into “park,” the accident would not have occurred. Significant, because the tests run on the vehicle by the MSHA inspectors immediately after the accident revealed that even when the vehicle was shifted all the way into “park. ” engine vibration would cause the transmission to migrate into “reverse” and the vehicle to resultantly and suddenly travel backwards at a quick speed. Ipso facto, if the accident was caused by the defect observed during the tests conducted immediately after the accident by MSHA, the accident was not caused by the design defect described by Richardson. More plausibly, it was caused either by defects resulting from incompetent repairs performed or defective parts installed while the truck was owned by Peewee Smith, or, possibly, as a result of the accident that disabled the emergency brake after it was sold to Sand Hill.
Wayne Napier testified that, when he shifted the transmission into “drive” so as to release Tommy Smith’s pinned body, he did not notice whether the transmission had been in “park” or “reverse;” thus, contrary to factual assertions in the majority opinion, slip op., at 2, there was no proof at trial either that Tommy Smith set the transmission in “park,” or that the accident was caused by the “park-to-reverse” phenomenon described by Richardson. Finally, if this accident was caused by the alleged design defect testified to by *506Richardson, it would be incredible that the “park-to-reverse” phenomenon would manifest itself for the first time on September 2, 1993, sixteen years and 143,000 miles after the vehicle was manufactured. In summary, Richardson’s theory and opinion were not supported by the facts proven in this case. Thus, Appellants did not prove that this accident was caused by a design defect in the manufacture of this vehicle, and Ford’s motion for a directed verdict should have been granted.
B. No competent evidence of reasonable alternative design.
Richardson posited that a proper design would have been to increase the distance between the “park” and “reverse” gears, which would require the driver to shift the transmission even farther in order to exceed hydraulic “neutral” and reach “park.” (Richardson did not explain how requiring the driver to shift the transmission farther would make it more likely that the driver would complete the shift as opposed to shifting to only 60% of completion. The exact opposite seems more likely.) Richardson admitted that his proposal had never been tested, subjected to peer review, or otherwise proven to be more effective at preventing human error than the design that was used. Nor was there any evidence that his proposed design had been accepted by experts in the field of automotive engineering design. In fact, Richardson had never even reduced his proposal to a sketch, much less a design blueprint. Clearly, Richardson’s testimony as to his proposed design was not of sufficient scientific reliability to satisfy KRE 702, as interpreted in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995), overruled on other grounds, Fugate v. Commonwealth, Ky., 993 S.W.2d 931 (1999), and Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575 (2000), adopting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The absence of any competent evidence of a reasonable alternative design also entitled Ford to a directed verdict.
C. Conformance to then-existing state of the art.
Richardson admitted that in 1977, all four major American automobile manufacturers equipped their vehicles with automatic transmissions having the same design as the transmission installed by Ford in this particular F-250 pickup truck. KRS 411.310(2) creates a presumption re-buttable by a preponderance of the evidence that a product is not defective if it “conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared, and the product was manufactured.” While an industry cannot set its own standards by uniformly adopting careless methods, Owens-Corning Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d 409, 411 (1998), Jones v. Hutchinson Mfg., Inc., Ky., 502 S.W.2d 66, 70 (1973), the statute “protect[s] a manufacturer from liability for failure to anticipate safety features which were unknown or unavailable at the time the product in question was manufactured and distributed.” Golightly, supra, at 411. In the early 1980s, the United States Department of Transportation, National Highway Traffic and Safety Administration (NHTSA), conducted an extensive investigation of allegations of “park-to-reverse” incidents involving transmissions installed by all major automobile manufacturers during the period 1966 to 1980 and concluded that no safety recall was warranted. 49 U.S.C. §§ 30118 and 30120 require the issuance of a recall upon a finding of a safety-related defect. Since the C-6 transmission conformed to recog*507nized and prevailing standards in existence at the time of its manufacture and installation and since the NHTSA’s investigation did not establish that the design was sufficiently unsafe to warrant recall, Ford was entitled to the statutory presumption and to a directed verdict on this issue.
II. PEREMPTORY STRIKES.
A. The plurality opinion.
The Court of Appeals correctly concluded, and a majority of this Court agrees, that the trial judge improperly allocated four peremptory strikes each to the Smith estate and Sand Hill Energy, Inc. The Smith estate was precluded from suing Sand Hill by reason of the “exclusive remedy” provision of the Kentucky Workers’ Compensation Act. KRS 842.690(1). Ford, however, filed a third-party complaint against Sand Hill for contribution with respect to any amounts it might be required to pay the estate. CR 14.01; Burrell v. Electric Plant Bd., Ky., 676 S.W.2d 231 (1984), overruled on other grounds, Dix & Assocs. Pipeline Contrs. v. Key, Ky., 799 S.W.2d 24 (1990). Ford admits that it filed the third-party complaint for the sole purpose of obtaining, at worst, an apportionment of causation against Sand Hill that might reduce its own liability for any judgment rendered in favor of the Smith estate. KRS 411.182; Baker v. Webb, Ky.App., 883 S.W.2d 898 (1994). Sand Hill then counterclaimed against Ford seeking recoupment of the $15,000.00 fine assessed against it by MSHA and the increased workers’ compensation premiums it paid after September 1993. Sand Hill’s counterclaim did not assert any negligence or causation on the part of Smith and, in fact, alleged that “the total cause of the damages to the plaintiffs, Estate of Tommy Smith, et al., was solely by the negligence in the design or manufacture, or both, of the vehicle by Ford Motor Company .... ”
When Ford subsequently dismissed its third-party complaint against Sand Hill,2 the trial judge entered an order realigning the parties so as to correctly identify Sand Hill as a party plaintiff in recognition of the facts that there were no longer any claims pending against Sand Hill and that it remained a party to the action solely for the purpose of litigating its claims against Ford. The posture of the parties at that point was the same as if Sand Hill had filed an intervening complaint against Ford but not against the Smiths. Civil Rule 47.03(1) and (2) provide:
(1) In civil cases each opposing side shall have three peremptory challenges, but co-parties having antagonistic interests shall have three peremptory challenges each.
(2) If one or two additional jurors are called, the number of peremptory challenges for each side and antagonistic co-party shall be increased by one.
Until today, we have always held this language to mean that “each party in cases involving multiple parties is entitled to three challenges only if the interests of the parties are antagonistic and their defenses inconsistent.” Penker Const. Co. v. Finley, Ky., 485 S.W.2d 244, 249 (1972) (emphasis added). See also Bowling Green Mun. Util. v. Atmos Energy Corp., Ky., 989 S.W.2d 577, 579 (1999) (error to *508grant separate peremptory strikes to multiple plaintiffs who sued the same defendants for various categories of damages resulting from a gas explosion and who claimed no negligence on the part of any of the plaintiffs because their interests were not antagonistic); Kentucky Farm Bur. Mut. Ins. Co. v. Cook, Ky., 590 S.W.2d 875, 876 (1979) (error to grant additional peremptory strikes to multiple defendants with identical trial positions); R.E. Gaddie, Inc. v. Evans, Ky., 394 S.W.2d 118, 120 (1965) (“in the absence of any antagonism shown between the trial positions of [the two plaintiffs] it was error to let them have three challenges apiece”); District Union Local 227, etc. v. Fleischaker, Ky., 384 S.W.2d 68, 72 (1964) (multiple defendants asserting a common defense did not have antagonistic interests, thus, were not entitled to separate peremptory strikes); Davenport v. Ephraim McDowell Mem. Hosp., Inc., Ky.App., 769 S.W.2d 56, 59 (1988) (defendants who did not have claims against each other and who shared the same theory of the case were not entitled to separate peremptory strikes because their interests were not antagonistic). The plurality opinion makes a half-hearted and legally unsupportable attempt to distinguish Bowling Green Municipal Utilities v. Atmos Energy Corp., supra, and ignores all of the other precedents cited above, then mistakenly relies on Mackey v. Greenview Hospital, Inc., Ky.App., 587 S.W.2d 249 (1979), to justify its departure from the requirements of this Court’s own rule, CR 47.03. At the time the jury was selected in Mackey, the multiple defendants who were granted separate peremptory strikes had cross-claims against each other and had been separately sued for independent acts of negligence. Neither of those facts were present in Bowling Green Municipal Utilities or in the case subjudice.
The plurality opinion agrees with the holding in Mackey, supra, that the determination of whether the parties’ interests are antagonistic must be made at the time the jury is selected, not before and not afterward. Id. at 259. However, the plurality posits that the trial judge in this case could not have known at the time this jury was selected that the Smith estate and Sand Hill did not have antagonistic interests. In fact, we have no way of knowing what the trial judge knew or believed with respect to this issue because, despite extensive pre-trial arguments by the attorneys for all three parties, he simply awarded the estate and Sand Hill separate peremptory strikes without addressing the issue of whether their interests were antagonistic. What he must have known, however, was that, at the time this jury was selected, the estate and Sand Hill each had a claim against Ford and neither had a claim against the other; each claimed that Ford’s negligence was the sole cause of the accident and that neither Smith nor Sand Hill was at fault; each predicated Ford’s liability on the same theory, i.e. negligent product design; and each intended to rely on the same expert, Melvin Richardson, to prove that theory.
In its pre-trial argument on this issue, Sand Hill’s theory of its antagonism against the Smith estate was that Tommy Smith’s minor child, Kristen Smith, could potentially reinstate her previously dismissed claim for loss of consortium per Giuliani v. Guiler, Ky., 951 S.W.2d 318 (1997), which was rendered only four days before this trial began. Of course, KRS 342.690(1) precludes not only the employee, but also his “legal representative, husband or wife, dependents, next of kin, and anyone otherwise entitled to recover damages ” from suing the employer, i.e., Sand Hill; and, if the child should sue Ford, the positions of the estate, Sand Hill and Ford with respect to apportionment of liability *509would be the same as in the present case. In fact, absent reversal for a new trial, relitigation of the issue of causation among these parties would be precluded by the principle of issue preclusion. Sedley v. City of West Buechel, Ky., 461 S.W.2d 556 (1971). Regardless, the child’s potential claim is no more antagonistic to Sand Hill now than it would have been had her claim been tried jointly with that of the Smith estate.
In its pre-trial argument, the Smith estate’s expressed theory of its antagonism against Sand Hill was that any time there is an apportionment of fault, there is antagonism among all parties against whom causation is alleged. However, that would be true only if the otherwise unantagonistic parties were alleging fault against each other. From the day this action was filed until today, both the Smith estate and Sand Hill have continued to assert that there was no contributory fault on the part of Sand Hill for failing to repair the inoperable handbrake, but see KRS 189.090(3)(e); and that there was no contributory fault on the part of Smith for permitting the vehicle to stand unattended with the engine running, but see KRS 189.430(3). The Smith estate had no motive to place any blame on Sand Hill because it was precluded by KRS 342.690(1) from recovering any damages that might be apportioned against Sand Hill. And Sand Hill had no motive to place any blame on Smith because it had no claim against the Smith estate and any apportionment of causation against Smith would reduce the amount of Sand Hill’s recovery against Ford.
Finally, the Smith estate argued (and the plurality opinion buys it, op., at 487) that it would be simply “unfair” to allow Ford to implead an extra party, then require the plaintiff to share its strikes with the impleaded party. Of course, the allocation of peremptory strikes is determined by CR 47.03, not by what a party or the trial judge might perceive as unfair. Bowling Green Mun. Util. v. Atmos Energy Corp., supra, at 579. Furthermore, this argument ignores the fact that Ford dismissed its third-party complaint against Sand Hill prior to trial. Sand Hill was a party at trial only because of its assertion of an independent claim for damages against Ford. Thus, as the trial judge correctly recognized when he realigned the parties, the posture of this case at trial was the same as if Sand Hill had filed an intervening complaint against Ford. Under that circumstance, there would have been no question about separate peremptory strikes. Nor should there have been any question under the facts as they existed when the jury was impaneled.
The plurality opinion’s “coparties” analysis makes no sense. Coparties are parties who are either both plaintiffs or both defendants and who do not have adverse claims against each other. Cf. Gish Realty Co. v. Central City, Ky., 260 S.W.2d 946, 950-51 (1953), quoting, annotation, 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060 (1944). Obviously, the Smith estate and Sand Hill were “coparties” for purposes of CR 47.03(1) at the time this jury was selected.
B. The concurring opinion.
As noted, supra, a majority of this Court agrees with the Court of Appeals that the Smith estate and Sand Hill were improperly allocated eight peremptory strikes instead of the four to which they were jointly entitled. Unfortunately, Justice Keller votes to reverse the Court of Appeals because of his notion that the failure to allocate peremptory strikes in accordance with CR 47.03 (or, in a criminal case, RCr 9.40) *510is essentially “no harm done.”3 His theory is that a party who can prove an erroneous allocation of peremptory strikes is entitled to relief only if that party can also prove that an unfit person actually served on the jury. That fact, of course, is like ignis fatuus, a will-o’-the-wisp incapable of proof.
In his similar dissent in Stopher v. Commonwealth, supra, note 3, Justice Keller reported that he had carefully reviewed the videotape of the voir dire of the jury and was unable to determine that any juror who sat on that case was unfit to do so. Id. at 813. Of course; for otherwise, the provably unfit juror would have been removed for cause. Provable unfitness, however, is not the premise for peremptory strikes. Peremptory strikes permit parties to excuse from the panel a limited number of “persons thought to be inclined against their interests,” though the suspected bias is insufficiently provable to warrant removal for cause. Holland v. Illinois, 493 U.S. 474, 480, 110 S.Ct. 803, 808, 107 L.Ed.2d 905 (1990); see generally, Swain v. Alabama, 380 U.S. 202, 219-20, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
[A party] may have the strongest reasons to distrust the character of a juror offered, from his habits and associations, and yet find it difficult to formulate and sustain a legal objection to him. In such cases, the peremptory challenge is a protection against his being accepted.
Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887). A peremptory strike is often exercised upon the “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.” Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892) (citing 4 Blackstone’s Commentaries 353).
It is this very premise of the peremptory strike, i.e., the right to remove a person suspected of bias that cannot be specifically proven, that belies the theory that a misalloeation of peremptories does not warrant reversal absent proof that a biased juror actually sat on the ease. And that is why we have consistently held that the “harmless error” rule embodied in CR 61.01 and RCr 9.24, cannot be applied to this type of error.
The requirement of a showing of actual prejudice effectively nullifies the requirements of the rule on allocation of peremptory challenges. To show actual prejudice, the complaining litigant would be required to discover the unknowable and to reconstruct what might have been and never was, a jury properly constituted after running the gauntlet of challenge performed in accordance with the prescribed rule of the game.
Kentucky Farm Bur. Mut. Ins. Co. v. Cook, supra, at 877 (citing Traynor, The Riddle of Harmless Error 66 (Ohio State Press 1970)). See also Swain v. Alabama, supra, 380 U.S. at 219, 85 S.Ct. at 835 (denial or impairment of the right to peremptory strikes is “reversible error without a showing of prejudice”); Davenport v. Ephrain McDowell Mem. Hosp., supra, at *51159 (“Granting the two non-antagonistic ap-pellees six peremptory strikes was reversible error as a matter of law.”).
The genesis of peremptory strikes is in the common law, not the Constitution. Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29-30, 63 L.Ed. 1154 (1919). However, the grant, denial, and exercise of those challenges can have both Due Process and Equal Protection implications, e.g., Batson v. Kentucky, supra, 476 U.S. at 89, 106 S.Ct. at 1719, because, whereas an excusal for cause is exercised by an unbiased trial judge for the purpose of excluding a juror deemed legally unfit, a peremptory strike is exercised by a biased litigant for the purpose of honing the composition of the jury to a group deemed most favorable to that litigant’s factual point of view.4 Peremptory challenges are specifically limited and allocated by law, i.e., by statute or rule, so that one side cannot unfairly “stack the deck” by removing all jurors suspected of favoring the other side. Holland v. Illinois, supra, 493 U.S. at 481, 110 S.Ct. at 808-09. “[I]f one party is allowed more peremptory challenges than the other, he is in effect, given an advantage in that he may select by indirection particular veniremen to try his cause.” Williams v. Pichard, 150 Fla. 371, 7 So.2d 468 (1942), rejecting the theory that the right to a peremptory challenge is the right to reject, not the right to select. And in Pendly v. Illinois Cent. R.R. Co., Ky., 92 S.W. 1 (1906), our predecessor Court held that a party was vested with a substantial right to have the other party’s peremptory challenges limited to the number specified by law.
When the appellant accepted the full jury and tendered it to the defendants, they only had the right to peremptorily challenge three jurors, leaving nine jurors accepted by the appellant in the box. When they were permitted to remove six jurors, a substantial right of the appellant was taken from her. Three jurors that she had accepted, and was entitled to have try her case, were taken off the jury without authority of law.
Id. at 2.
There is no limitation on strikes for cause, and the granting of a motion to strike for cause is generally regarded as discretionary. But the number and allocation of peremptory strikes is established by law, and the trial judge has no discretion whether to apply that law. State v. Bertrand, 167 La. 373, 119 So. 261, 262 (1928). See also Bowling Green Mun. Util. v. Atmos Energy Corp., supra, at 579 (“the exceptions of CR 47.03 only permit additional strikes when the interests of the parties are antagonistic or when extra jurors are called.... No other exceptions are permitted.”). The denial of the peremptory strikes to which a party is entitled denies that party the right afforded by law to excuse prospective jurors perceived to be biased either against that party or in favor of the opposing party. And to grant a party more peremptory strikes than those to which that party is entitled permits that party to excuse more prospective jurors than the law allows for the same reasons. Either way, the beneficiary of the error can “stack the deck” and thereby deny the aggrieved party both Due Process of law and Equal Protection under the law. U.S. Const., amend. XIV § 1; Ky. Const. § 3. For that reason, the misallocation of peremptory strikes is always prejudicial and is always treated as reversible error.
*512To require a party to prove the improvable in order to protect a right to which that party is entitled by law would also render the law, i.e., CR 47.03(1) and RCr 9.40, directory rather than mandatory and enable every trial judge in the Commonwealth to decide for him/herself how many peremptories should be allotted on a case-by-case basis. That is precisely what happened in Bowling Green Municipal Utilities v. Atmos Energy Corp., supra, and we summarily reversed that case for that reason. To permit peremptory strikes to be allocated arbitrarily and inconsistently on a case-by-case, court-by-court basis would be intolerable. It would be better to abolish peremptory strikes than to permit them to become, as here, the tool of judicial arbitrariness. Ky. Const. § 2.
III. PUNITIVE DAMAGES INSTRUCTION.
The Court of Appeals also correctly held that the trial court erred by not instructing the jury on punitive damages in accordance with the requirements of Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), and Hanson v. American National Bank & Trust Co., Ky., 865 S.W.2d 302 (1993). In accordance with Haslip, supra, 499 U.S. at 19-20, 111 S.Ct. at 1044, we held in Hanson that, to satisfy the Due Process Clause of the United States Constitution, “instructions to the jury must define the purpose of punitive damages as punishment to the wrongdoer and as a deterrent to wrongdoers and others from such activities in the future.” Hanson, supra, at 310. This is the same definition of punitive damages set forth in KRS 411.184(f).
Here, Ford tendered a punitive damages instruction that complied with the constitutional requirement: “[Pjunitive damages are designed to punish Ford for allegedly malicious conduct and to deter Ford and others from engaging in such conduct in the future.” Nevertheless, the trial judge gave the jury a punitive damages instruction that did not define the purpose of punitive damages in any respect but simply afforded the jury an unfettered avenue by which to award the Smith estate an unlimited amount of additional compensation. I conclude from the majority opinion’s statement that “We discern no shortcoming in the instructions given that violates the standards set forth in Hanson v. American Bank (sic),” op., at 493, that the majority simply has not bothered to read the instructions that were, in fact, given. The instruction on punitive damages obviously did not comply with Due Process requirements, and “[i]n this jurisdiction it is a rule of longstanding and frequent repetition that erroneous instructions to the jury are presumed to be prejudicial.” McKinney v. Heisel, Ky., 947 S.W.2d 32, 35 (1997).
IV. EXCESSIVE PUNITIVE DAMAGES.
As stated in Pacific Mutual Life Insurance Co. v. Haslip, supra, “unlimited jury discretion ... in the fixing of punitive damages may invite extreme results that jar one’s constitutional sensibilities.” Id. at 18, 111 S.Ct. at 1043. Because juries sometimes “run wild” in awarding punitive damages, id., it is necessary “to determine whether the Due Process Clause renders the punitive damages award in this case constitutionally unacceptable.” Id.; see also BMW of North America, Inc. v. Gore, 517 U.S. 559, 562, 116 S.Ct. 1589, 1592, 134 L.Ed.2d 809 (1996). Noting that “[e]le-mentary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose,” the *513United States Supreme Court established in Gore a three-pronged test for determining whether a particular award of punitive damages passes constitutional muster: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the amount of the award and the harm or potential harm suffered by the plaintiff; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases. Id. at 574-75, 116 S.Ct. at 1598-99.
1. Degree of reprehensibility.
This issue is resolved by the fact that the NHTSA, the federal agency charged with investigating automobile safety complaints, concluded, after an extensive investigation conducted twelve years before this accident, that vehicles equipped with a transmission of the type installed in this Ford F-250 pickup truck were not sufficiently unsafe to warrant recall. Remember, federal law requires the NHTSA to issue a recall if its investigation reveals a safety-related defect. 49 U.S.C. §§ 30118, 30120.
2. Ratio.
The majority opinion concludes that the five-to-one ratio of punitive damages to compensatory damages approved in this case is an insufficient disparity to warrant a finding of excessiveness. Of course, the majority conveniently overlooks the fact that two-thirds of the compensatory damages awarded in this case were unsupported by any evidence and, thus, also excessive. The ratio should not be determined by measuring the punitive damages award against the unproved compensatory damages awarded by the same “runaway” jury that rendered the punitive damages verdict but against the actual damages proven by the evidence. Here, the Smith estate proved $955,628.12 in damages for the destruction of Tommy Smith’s power to labor and earn money and introduced no evidence warranting an award of damages for pain and suffering. Thus, the punitive damages verdict was twenty times greater than the actual damages proven, and the award of punitive damages deemed reasonable by a majority of this Court is fifteen times greater than the actual damages proven.
3.Sanctions for comparable misconduct.
This, of course, is the most significant factor proving that the punitive damages awarded in this case are “constitutionally unacceptable.” Haslip, supra, 499 U.S. at 18, 111 S.Ct. at 1043. At the time of manufacture, at the time of the accident, and at the time of trial, the maximum permissible civil penalty for a motor vehicle design safety violation permitted by federal law was $800,000.00, even if there was proof of a series of similar violations. 49 U.S.C. § 30165(a).5 More significantly, under Kentucky law, the maximum criminal penalty that could be imposed against Ford if it had intentionally killed Tommy Smith is $20,000.00. KRS 534.050(l)(a). And, of course, the amount of punitive damages approved here is almost three times greater than any previously reported award of punitive damages in Kentucky. The highest previous award was $5,775,000.00 awarded in Hanson v. American National Bank & Trust Co., supra, for intentional misconduct. The highest previous award of punitive damages in a wrongful death action was $15,000.00 in Cooper v. Barth, Ky., 464 S.W.2d 233 (1971), l/100th of the *514amount approved today. Clearly, Ford could not, either in 1977 or in 1993, have had “fair notice ... of the severity of the penalty,” i.e., $15,000,000.00, that might be imposed upon it for the negligent design of a transmission system manufactured for use in its motor vehicles. For that reason alone, the imposition of these punitive damages deprives Ford of its constitutional rights under the Due Process Clause.
It is now clear that the majority of this Court is incapable of enforcing the constitutional restraints against excessive punitive damages verdicts in this jurisdiction. In Hanson v. American National Bank & Trust Co., supra, this Court reversed an order of remittitur of a punitive damages verdict, declaring that there is no authority for court-ordered remittitur in this jurisdiction. Id., 865 S.W.2d at 310. See also Farmland Mut. Ins. Co. v. Johnson, Ky., 36 S.W.3d 368, 383 (2000). In Williams v. Wilson, Ky., 972 S.W.2d 260 (1998), this Court applied its self-created “jural rights” doctrine to declare unconstitutional any legislative enactment that might so much as “impair” the unfettered discretion of juries to award punitive damages. And, today, while purporting to recognize the mandate for de novo review established in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., supra, the majority does no more than grudgingly reduce an obviously excessive award to one that is also obviously excessive. Compare BMW of North America, Inc. v. Gore, supra, in which the Alabama Supreme Court reduced a $4,000,000.00 punitive damages verdict to $2,000,000.00, which the United States Supreme Court held was still excessive. In approving the slightly reduced, but still excessive, award in this case, the majority opinion repeatedly cites our unanimous opinion in another personal injury product liability case, Owens-Coming Fiberglas Corp. v. Golightly, supra. I wrote the opinion in Golightly; and suffice to say that the compensatory damages verdict in that case was $290,000.00 and the punitive damages verdict was $435,000.00, a ratio of 1.5 to one, ten times less than the ratio approved here. To compare the damages awarded in Golightly with the damages awarded in the case sub judice borders on the absurd.
Perhaps, Justice Graves was right when he opined in Farmland Mutual Insurance Co. v. Johnson, supra, that “punitive damages have no place in modern tort law.” Id. at 388 (Graves, J., dissenting). Certainly, punitive damages have no place in the tort law of a jurisdiction whose highest court has abdicated its responsibility to impose reasonable, much less constitutional, restraints against the excessive imposition of such damages. This case, and perhaps the entire concept of punitive damages, begs for further review by a Court that is more interested in Due Process of law than in the redistribution of wealth. Hopefully, this will not be the last Court to evaluate what has occurred in this case.
V. REINSTATEMENT OF SAND HILL’S CLAIM.
The trial judge directed a verdict in favor of Ford with respect to Sand Hill’s claim for damages. Indicative of the majority’s mind-set with respect to this entire case is its decision to set aside that dismissal and reinstate Sand Hill’s claim for damages. Remember, Sand Hill’s claim against Ford was for recoupment of the $15,000.00 in fines imposed against it by MSHA and of the increased workers’ compensation insurance premiums that it paid after September 1993.
My research fails to yield even a suggestion in American jurisprudence that the imposition of a fine by a government agency creates a cause of action for damages in *515favor of the party against whom the fine was levied — no doubt because fines are penalties levied for the actor’s own misconduct, not that of another. Presumably, the majority’s research was equally fruitless since the majority opinion cites no authority for such a novel legal theory. Further, two of the citations issued by MSHA against Sand Hill pertained to the inoperable emergency brake. The third pertained partly to the fact that the gear shift mechanism on the truck was “worn out” and partly to the fact that the indicator was not properly synchronizing. Only that portion of the fine imposed for the improperly synchronizing indicator could possibly relate to a design defect. Richardson did not testify to that effect and neither he nor any other witness in this case suggested that the accident was caused by an improperly synchronizing indicator. Even if that were not so, Sand Hill offered no evidence to prove how much of the $15,000.00 fine was imposed because of the inoperable emergency brake and worn out gear shift and how much was imposed because of the improperly synchronizing indicator. Thus, the jury could only have speculated as to how much of the $15,000.00 fine, if any, was traceable to an alleged design defect.
Sand Hill’s secretary/treasurer, Warren Freeman, testified that the company’s workers’ compensation insurance premium for “the year ending 1993” was $16,621.00, that the premium for the period September 1998 to September 1994 was $41,130.64, and that the premium for September 1994 to September 1995 was $40,032.64. However, he had no personal knowledge that the increase was caused by the September 2, 1993 accident as opposed to other factors, e.g., that Sand Hill’s new Mud Lick strip mine site did not begin operations until August 1993. KRE 602. Sand Hill had subpoenaed James Arnett of the Mt. Valley Insurance Agency as a witness, perhaps to prove the missing link of causation. When Arnett failed to appear for trial, the trial judge offered to issue a warrant to obtain his presence. After discussing the situation privately with Freeman and Wayne Napier, Sand Hill’s attorney announced in open court that he was closing his case without Arnett’s testimony and that the judge could “rule whatever you want to with regard to our case.” The trial judge quite properly ruled that the case should be dismissed for failure to prove causation.
Accordingly, I dissent from the majority opinion in its entirety.
GRAVES and JOHNSTONE, JJ., join this dissenting opinion.
GRAVES, Justice,dissenting.
Respectfully, I must dissent.
Tommy Smith was an employee and agent of Sand Hill, the principal. Any negligent acts of the agent in the course of employment are imputed to the principal. Under the principles of agency law, Tommy Smith and Sand Hill have identical interests.
The Court of Appeals correctly ruled that because Sand Hill and the estate did not have antagonistic interests, the parties were not entitled to additional peremptory challenges. CR 47.03(1) has been consistently interpreted to deny additional per-emptories to co-parties when the parties take the same position at trial. Kentucky Farm Bureau Mut. Ins. Co v. Cook, Ky., 590 S.W.2d 875, 876 (1979). The mere option for the plaintiff to place blame on Sand Hill does not give rise to the inference that the parties were antagonistic at trial. Rather, both parties sought to place the blame squarely on the shoulders of Ford Motor Co., leaving no room for doubt about the identical nature of their claims.
*516At the time of jury selection, CR 47.03(1) requires that there be actual antagonistic interests before additional peremptory challenges may be granted. Kentucky courts have held that interests of co-parties are not antagonistic when the parties take “identical trial positions,” Kentucky Farm Bureau Mutual Ins. Co., supra, and when the parties “share the same theory of the case.” Davenport v. Ephraim McDowell Mem’l Hosp., Inc., Ky.App., 769 S.W.2d 56, 59 (1988). It is clear that in this instance, the estate and Sand Hill satisfy these descriptions perfectly and exclude any antagonistic interests.
Sand Hill was brought into the case only by Ford’s third-party complaint, the estate having chosen not to sue it originally. Sand Hill then counterclaimed against Ford as the sole cause of the accident and for expenses incurred. After Ford dropped the complaint against Sand Hill in light of the Workers’ Compensation Act, Sand Hill remained in the case only for apportionment purposes. Finally, the Court of Appeals recast Sand Hill as a third-party plaintiff and treated the counterclaim against Ford as a complaint. The estate claims that the label of “Plaintiff’ did not change the fact that Sand Hill was really a defendant. Regardless of the label placed on Sand Hill, the lack of an adversarial relationship at any point in the proceedings shows that the parties’ interests were not antagonistic.
Although Sand Hill was originally brought in as a defendant, which would tend to prove antagonistic interests between it and the estate, it is clear that during the trial both entities were only interested in proving that Ford was at fault. Neither party asserted a claim against the other, and counsel for the estate even assured the jury that Sand Hill was not at fault because they didn’t make the truck. Instead, the estate wisely chose to place full blame on Ford, because under Kentucky’s Workers’ Compensation Act, KRS 342.690(1), Sand Hill could not be held financially hable. Thus, any fault which the jury attributed to Sand Hill would simply reduce the estate’s recovery, and if Sand Hill was found to be 100% at fault, the estate would be denied recovery. Any potential for antagonism quickly vanished when the estate realized the ramifications of the Workers’ Compensation Act, and it is inequitable to allow two parties with no intention of suing each other to gain double the usual peremptory strikes and, at least in theory, a more favorable jury. There can be no doubt, given these facts, that the parties shared the same theory of the case and took identical trial positions, making the grant of additional peremptories improper under CR 47.03(1).
The Court of Appeals decision should be affirmed on this issue.
COOPER, J, and JOHNSTONE, J., join in this dissent.
. Despite the fact that a wrongful death action cannot be prosecuted by the decedent’s estate and amounts recovered trader the wrongful death act are not payable to the *502estate, KRS 411.130, Napier's Adm’r v. Napier’s Adm’r, 210 Ky. 163, 275 S.W. 379, 380 (1925), Rhodes v. Rhodes, Ky.App., 764 S.W.2d 641, 643 (1988), the wrongful death portion of this action was prosecuted by the “Estate of Tommy Smith," and the entire judgment, including the judgment for wrongful death damages, was awarded to the estate. The parties listed as plaintiffs in the caption of the Complaint were "Estate of Tommy Smith, individually, Brenda Smith, his widow, individually, and Kristen Smith, an infant by and through her next friend, Brenda Smith, jointly, severally and individually.” The estate’s claim for damages was not only for pain and suffering and for medical and burial expenses (damages properly recoverable by the estate) but also for damages for the destruction of Tommy Smith’s power to labor and earn money (damages not recoverable by the estate). Brenda and Kristen Smith, individually, both sought damages only for loss of consortium. The caption did not list Brenda Smith as a party plaintiff in her capacity as personal representative, and the judgment was not awarded to her in that capacity or otherwise.
. It is doubtful that this procedure of filing and then voluntarily dismissing a third-party complaint suffices to require an apportionment instruction against the dismissed third-party defendant. KRS 411.182(1) does not address this issue, and a voluntary dismissal by the third-party plaintiff could be interpreted as a "release” that would discharge the third-party defendant "from all liability for contribution” pursuant to KRS 411.182(4), thus eliminating the basis for apportionment. See Degener v. Hall Contracting Co., Ky., 27 S.W.3d 775, 778-79 (2000).
. As he did in Stopher v. Commonwealth, Ky., 57 S.W.3d 787, 813-17 (2001), Justice Keller recognizes here that his view is contrary to long-standing Kentucky precedent. Oddly, however, though he dissented in Stopher because he perceived that the majority had departed from long-standing precedent with which he disagreed but nevertheless felt compelled to follow until overruled, id. at 808, he concurs here with a majority opinion that he acknowledges departs from similar longstanding precedent with which he also disagrees but does not feel compelled to follow until overruled.
. It is an old saw that a litigant does not want an unbiased jury but a jury that is biased in that litigant's favor.
. Congress increased the maximum to $15,000,000.00 by statutory amendment in 2000. Pub.L. 106-414 § 5(a) (2000). Presumably, that is how the majority opinion arrived at the $15,000,000.00 figure approved in this case. Of course an amendment adopted in 2000 could not provide notice with respect to acts that occurred in 1977 or 1993.