dissenting. I dissent on the basis jhat a $25 million punitive-damage award is excessive. I would hold that the trial court erred in denying Union Pacific’s motion for remittitur of punitive damages.
A remittitur is within the inherent power of the court if an award is grossly excessive or appears to be a result of passion or prejudice. McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994). The reviewing court will reverse a remittitur if the punitive-damages award is supported by evidence and does not shock the conscience of the court. Id.
To determine whether the award is excessive under state law, we must analyze whether the jury’s verdict is so great as to shock the conscience of the court. Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003). In applying the test for excessiveness, we make a case-by-case determination, and the award of punitive damages maybe reduced if the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996).
I view the $25 million punitive-damage award as excessive. The facts in this case reflect a non-fatal injury to appellant, as contrasted with the facts in Advocat, supra, where the death of a nursing-home patient followed an extended period of neglect. In Advocat, we held that a punitive damage award of $63 million shocked the court’s conscience, and we reduced the award to $21 million. Id. Before Advocat, the highest punitive-damages award that was affirmed by this court was $3 million. See Airco, Inc. v. Simmons First Nat. Bank, 276 Ark. 486, 638 S.W.2d 660 (1982).
Here, the evidence does not support a $25 million award in punitive damages. First, I cannot find where the Arkansas Highway Department required or suggested additional safety devices at Crossing 123. Second, Patricia Long, a senior claims representative for Union Pacific, testified that in her inspection of Union Pacific track records, she found no evidence that there had been any traffic accidents at Crossing 123. Third, Union Pacific entered into a contract with Tweedy Contractors to clear the vegetation four months prior to the accident, specifically taking affirmative steps to remedy any vegetation problem at Crossing 123, thereby demonstrating a lack of malice. For these reasons, I do not find sufficient evidence to support such an excessive award of punitive damages, and I respectfully dissent.
Because I would remit the excessive punitive damages on the basis of prior Arkansas law, it is unnecessary to delve into an analysis under BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).
I am authorized to state that Chief Justice Dickey joins in this dissent.