concurring and dissenting:
I agree with the majority that the trial court erred when it excluded any evidence of cancer and that this érror requires a new trial.
I am also in agreement that there is no per se rule which precludes the recovery of punitive damages in a products liability case. See: Annot., 13 A.L.R.4th 52 (1982). In this case, the trial court did not hold otherwise. It held, rather, that the evidence was insufficient to submit the issue of punitive damages to the jury.
An award of punitive damages is an extreme remedy. Although nominally civil, a claim for punitive damages is not intended to compensate the plaintiff but to punish a defendant and deter him from flagrant and outrageous misconduct. In order to establish a right to recover punitive damages, a plaintiff must prove that a defendant has been guilty of outrageous conduct, “that is, ... acts done with a bad motive or with a reckless indifference to the interests of others.” Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963), quoting Restatement of Torts § 908(1) comment b. The consequences of imposing punitive damages, as the majority recognizes, are serious. They include an implied stigma greater than that which attaches to an award of compensation and which is similar to, if not the same as, a criminal conviction. Moreover, there is inherent in an award of punitive damages a substantial risk of error, for there are no adequate guidelines and the award is dependent almost wholly upon the discretion of inexperienced jurors who are not limited in any way with respect to the amount of punitive damages which they can assess.
Because “ ‘the consequences of imposing punitive damages in a case like the present are so serious’ ...[,] ‘particularly careful scrutiny’ is warranted.” Acosta v. Honda *380Motor Co., 717 F.2d 828, 839 (3d Cir.1983), quoting Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 852 (2d Cir.1967). Therefore, I would hold that in an action where liability is predicated upon Section 402A of the Restatement (Second) of Torts, a plaintiff seeking punitive damages must prove the requisite “outrageous” conduct of a defendant by evidence that is clear and convincing.1 See: Acosta v. Honda Motor Co., supra; Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980). See also: Wheeler, “The Constitutional Case for Reforming Punitive Damages Procedures,” 69 Va.L.Rev. 269, 296-298 (1983).
Applying this standard to the evidence in the instant case, it seems clear that plaintiff failed to produce evidence sufficient to show that any of the defendants had been guilty of outrageous conduct. Therefore, the trial court properly refused to submit the issue of punitive damages to the jury.
For the foregoing reasons, I would limit the award of a new trial to the issue of compensatory damages only.
HESTER, J., joins.. The use of a different standard of proof will most likely compel bifurcation. A jury would be permitted to hear and decide punitive damage issues only after it had rendered a verdict on liability and compensatory damages.