BENETTA BUELL-WILSON v. FORD MOTOR COMPANY

Filed 3/10/08; on remand from U.S. Supreme Court

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story Continued From Part V ..

(6) Recent Ninth Circuit cases

Ford asserts a recent Ninth Circuit case, Merrick v. Paul Revere Life Ins. Co. (9th Cir. 2007) 500 F.3d 1007 (Merrick), compels the conclusion the court erred by failing to instruct the jury on third party harm "irrespective of the proposed instruction's precise language." This contention is unavailing.

In Merrick, the jury awarded $10 million in punitive damages in an insurance bad faith action. The plaintiff's bad faith and punitive damages claims "turned upon linking [the defendants'] handling of [the plaintiff's] claim to a decade of allegedly improper claims handling practices." (Merrick, supra,500 F.3d at p. 1015.) In response, the defendants requested the court instruct the jury as follows: "In deciding whether or in what amount to award punitive damages, you may consider only the specific conduct by Defendants that injured Plaintiff. You may not punish Defendants for conduct or practices that did not affect Plaintiff, even if you believe that such conduct or practices were wrongful or deserving of punishment. The law provides other means to punish wrongdoing unrelated to Plaintiff." (Ibid.) The court denied the request and, on appeal, based on the intervening decision in Philip Morris, the defendant argued the district court's refusal violated its due process rights. (Merrick, supra, 500 F.3d at p. 1007.)

In addressing plaintiff's claim the district court properly denied the defendant's proposed instruction, the Ninth Circuit stated plaintiff was "correct that the first sentence of the proposed instruction [was] misleading because it fail[ed] to indicate that the jury may consider harm to others as part of its reprehensibility analysis." (Merrick, supra,500 F.3d at p. 1016.) However, based on federal law, the Ninth Circuit then held this error by defendants was not fatal to their appeal because the trial court had a duty to correct the erroneous instruction and give the jury a proper one: "[T]he fact that the proposed instruction was misleading does not alone permit the district judge to summarily refuse to give any instruction on the topic. . . . Where a proposed instruction is supported by law and not adequately covered by other instructions, the court should give a non-misleading instruction that captures the substance of the proposed instruction." (Id. at p. 1017, citation omitted.)

However, as discussed in detail, ante, California law does not require judges to correct erroneous or misleading instructions. (Shahinian v. McCormick (1963) 59 Cal.2d 554, 565-566, overruled on other grounds in Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) For example, in Boeken, supra,127 Cal.App.4th at page 1673, the Second District Court of Appeal explicitly rejected the exact federal rule announced in Merrick: "[I]nstruction O was incomplete. . . . [Defendant] argues that the omission was so minor as to require the trial court to modify the instruction. We disagree. 'A trial court has no duty to modify or edit an instruction offered by either side in a civil case. If the instruction is incomplete or erroneous the trial judge may . . . properly refuse it.' "

Further, here Ford did not request a legally correct instruction or request the court amend it to properly state the law. Ford also argued against instructing the jury in a proper manner. Indeed, Ford opposed plaintiff's request the court instruct the jury that, in considering reprehensibility, it could consider third party harm, i.e., whether the conduct was repeated. Finally, unlike the defendant in Merrick,Ford did not preserve any issue of instructional error because it failed to raise the issue when it first appealed to this court.

White, supra,500 F.3d 963, another recent Ninth Circuit case that reversed a punitive damages award because of the court's failure to give a third party harm instruction, also does not support Ford's position. As we noted, ante, in White, counsel for Ford, when requesting an instruction on third party harm, also acknowledged the jury could consider third party harm in assessing reprehensibility: "Concerned that the jury would punish Ford for the harm suffered by other rollaway victims,^[[1]] counsel for Ford had objected to the district court's proposed jury instructions, and requested an instruction that would prevent the jury from punishing '[Ford] in this case not just for the harm to these plaintiffs, but for harm to other plaintiffs, whether in state or out of state.' Ford conceded that evidence of harm to other people could be considered by the jury in assessing reprehensibility, but argued that the jury could punish only 'for the harm to this plaintiff.' The district court refused such an instruction, deciding that it was not required by existing precedent." (White, supra, 500 F.3d at p. 972, italics added.)

In contrast, in this case Ford refused to acknowledge the jury could consider third party harm in addressing reprehensibility, and in fact proposed an instruction that barred the jury from considering this factor and opposed counsel's arguments that the jury should be instructed on third party harm on the issue of reprehensibility. In White, trial counsel for Ford did not submit legally incorrect instructions as it did here, or oppose instructions that could have cured that error.

(7) Revision of CACI instructions after Philip Morris

Ford asserts that because the Judicial Council of California (Judicial Council) recently revised the CACI instructions on punitive damages in response to Philip Morris and declined to add language specifying that juries could consider third party harm in assessing reprehensibility, its instruction was sufficient. We reject this contention.

On May 24, 2007, the Judicial Council's Advisory Committee on Civil Jury Instructions (Advisory Committee) proposed revised CACI instructions in response to Philip Morris. (Advisory Com. Rep. (July 24, 2007) pp. 2-3.)^[2] In August 2007 the Judicial Council approved the revisions, which added the following language to CACI Nos. 3940, 3942, 3943, 3945, 3947 and 3949: "Punitive damages may not be used to punish [name of defendant] for the impact of [his/her/its] alleged misconduct on persons other than [name of plaintiff]."

Of importance to our analysis, in considering what revisions should be made to the CACI punitive damages instructions in light of Philip Morris, the Advisory Committee reviewed comments from the public. (Advisory Com. Rep., supra, at pp. 1-2.) The committee noted that "the principal suggestion was to include language that would expressly clarify how harm to nonparties may be considered in determining reprehensibility of the defendant's conduct." (Id. at pp. 2-3.) The committee ultimately rejected that suggestion, stating "because the United States Supreme Court did not approve or suggest any particular language for this purpose, it would be best not to attempt such an addition. The current instructions permit consideration of a defendant's (1) disregard of the health and safety of others and (2) pattern and practice. The committee believes that this language leaves sufficient room for the plaintiff to present harm to others for the limited purpose of proving reprehensibility." (Id. at p. 3, italics added.)

These comments do not help, and indeed weaken, Ford's position that its proposed instruction on third party harm should have been given. The comments show the Advisory Committee did not deny the need to instruct juries that they may consider third party harm in determining reprehensibility. Rather, they found the existing instructions already did so.^[3]One of the CACI instructions the Advisory Committee was speaking of, CACI No. 3945, specifies the factors State Farm and Simon holdjuries are to consider in deciding the reprehensibility of a defendant's conduct, including "[w]hether [name of defendant] disregarded the health or safety of others" and "[w]hether [name of defendant]'s conduct involved a pattern or practice."^[4]

In this case, Ford did not propose an instruction that set forth the factors juries are to consider in determining reprehensibility. Moreover, as discussed, ante, plaintiff proposed an instruction that would have listed the factors juries were to consider in determining reprehensibility. Ford opposed that instruction, however, and the court refused to instruct the jury with that proposed instruction. Most important, as already discussed in detail, Ford's instruction directly contradicted the amended CACI instructions and Philip Morris because it prohibited the jury from considering third party harm in determining reprehensibility.

(8) Impact of GVR order

Ford asserts the United States Supreme Court's GVR order implies the high court found Ford did not forfeit the right to raise instructional error on appeal. However, GVR orders do not imply any view on the merits of the remanded case and do not necessitate the reversal of the remanded case if the intervening authority is distinguishable or otherwise does not require a change in the original opinion. (In re Patrick W. (1980) 104 Cal.App.3d 615, 618; Stern, supra,  5.12(b), p. 319, fn. 94 [noting that "in a substantial number of the remanded cases the courts of appeals adhered to the original ruling, and that very few of these judgments were reversed by the Supreme Court"].)

Indeed, despite the GVR order, Buell‑Wilson I "retains the ordinary precedential value of a published opinion of an intermediate appellate court and it remains the law of the case on all points other than the federal constitutional issue." (Romo, supra,113 Cal.App.4th at p. 744, fn. 1; accord, Occidental Life Ins. Co. v. State Bd. of Equalization (1982) 135 Cal.App.3d 845, 848, fn. 1 ["we refer to the [vacated] decision . . . for the continuing value of its reasoning in nonfederal aspects"]; DeCamp v. First Kensington Corp. (1978) 83 Cal.App.3d 268, 279-280; Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 470; Guidi v. Superior Court (1973) 10 Cal.3d 1, 13, fn. 11.) The California Supreme Court routinely cites and relies on cases of its own, even when, as it notes, they have been "vacated on other grounds." (See People v. Griffin (2004) 33 Cal.4th 536, 598; People v. Thomas (1992) 2 Cal.4th 489, 518; People v. Allison (1989) 48 Cal.3d 879, 898-899.)

Accordingly, we conclude Ford forfeited the right to assert, under Philip Morris, that the court erred in failing to instruct the jury that it could not punish Ford for harm to third parties.

(9) Post-oral argument legal developments

After oral argument was heard and this matter was submitted, two cases were filed relevant to our discussion of Ford's forfeiture of the right to raise the issue of whether the court erred in failing to instruct the jury on third party harm.

In Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655 (Bullock), the Second District Court of Appeal concluded that under Philip Morris, supra,166 L.Ed.2d 940,the trial court erred in refusing to instruct the jury, " 'You are not to impose punishment for harms suffered by persons other than the plaintiff before you.' " (Bullock, supra, at p. 693.) In doing so, the court concluded Philip Morris's proposed instruction was not incomplete or misleading even though it did not include the qualification that evidence of harm to others could be considered to determine the reprehensibility of the conduct that harmed the plaintiff. The Court of Appeal reached this conclusion by first noting that consideration of harm to others to determine the reprehensibility of a defendant's conduct to a plaintiff for the purpose of determining the amount of punitive damages "is not imposing punishment for harm caused to others." (Id. at p. 694.) The Court of Appeal further concluded that defendant Philip Morris "had no duty to qualify its proposed instruction in order to encompass a rule of law favorable to Bullock concerning the permissible use of evidence of harm caused to others," in the absence of a request from the plaintiff of such limiting language. (Ibid.) The court also held that a remittitur was not appropriate under the circumstances and ordered a new trial on punitive damages. (Id. at pp. 694, 695 & fn. 21)

Bullock, supra, 159 Cal.App.4th 655, is distinguishable from ourcase because, here, Ford's proposed Special Jury Instruction No. 21 did not merely state that the jury could not punish Ford for harm suffered by third parties. Rather, as discussed, ante, that instruction prohibited the jury from considering third party harm for any purpose in setting the amount of punitive damages. Moreover, in our case we do not have a situation where Ford proposed an instruction that correctly stated the law, and the plaintiffs failed to request a qualification that would have made the instruction more favorable to their position. As discussed in more detail, ante, plaintiffs did request that the court instruct the jury for what purposes it was permissible for it to consider third party harm, and the court, at Ford's urging, rejected that instruction. Finally, we have also concluded here that Ford has forfeited the right to raise the contention that the court committed instructional error because it failed to raise this issue on its original appeal.

The second recent case relevant to our discussion is Williams v. Phillip Morris, Inc. (Or. Jan. 31, 2008, S051805) ___ P.2d ___ [2008 Ore. Lexis 5] (Williams II), wherein the Oregon Supreme Court, on remand from the United States Supreme Court's decision in Philip Morris, held that the trial court did not err in refusing to give an instruction that properly told the jury that it could not punish the defendant for harm to third parties, but could consider third party harm in considering the defendant's reprehensibility. (Philip Morris, supra,166 L.Ed.2d at p. 947.) The Oregon Supreme Court reached this conclusion because the instruction misstated Oregon law in two respects unrelated to third party harm. The Willams II court held that a jury instruction need not be given unless it is " 'clear and correct in all respects, both in form and in substance, and . . . altogether free from error.' " (Williams II, supra,___ P.2d at p. ___ [2008 Lexis at p. *18].) "It is not enough . . . to offer a proposed instruction that is correct in part and erroneous in part, leaving the trial court to solve the problem for itself." (Id. at p. *19].)

The Williams II decision provides further supportfor our conclusion here that Ford forfeited the right to assert the court erred in refusing to give Special Jury Instruction No. 21. We have concluded, ante,as the Oregon Supreme Court did, that because Ford's instruction was incomplete, misleading, and affirmatively misstated the law on punitive damages, the court did not have an obligation to give the instruction as written, nor to correct it for Ford.

4. Prejudice

We also conclude, based on our previous reduction of the punitive damages award and the evidence and argument of counsel during the punitive damages phase of the trial, that there was no "significant risk" the jury punished Ford for harm to third parties. Therefore, even assuming the court erred in failing properly to instruct the jury on third party harm, Philip Morris does not necessitate a reversal of the punitive damages award.

a. Standard of review

Under article 13 of the California Constitution, "[a] judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' " (Soule, supra, 8 Cal.4th at p. 580.) Instructional error is deemed harmless unless it is "reasonably probable defendant would have obtained a more favorable result" if the error had been corrected. (Id. at p. 570.)

b. Prior reduction of punitive award

As we have explained, ante, in reviewing the amount of a punitive damages award for prejudice, for purposes of our review the relevant amount is not the amount initially awarded by the jury, but rather the amount by which the trial court, and this court, ordered the judgment reduced. (See Hasson, supra, 32 Cal.3d at p. 419.)

In deciding whether an award of punitive damages is constitutionally excessive, we review the award de novo, making an independent assessment of the reprehensibility of the defendant's conduct, the relationship between the award and the harm done to the plaintiff, and the relationship between the award and civil penalties authorized for comparable conduct. "This '[e]xacting appellate review' is intended to ensure punitive damages are the product of the ' " 'application of law, rather than a decisionmaker's caprice.' " ' " (Simon, supra,35 Cal.4th at p. 1172.)

Moreover, there is a distinction to be drawn between what is traditionally referred to as a "remittitur," which we applied to the emotional distress damages, and a reduction of an excessive punitive damages award: "A constitutionally reduced verdict . . . is really not a remittitur at all. A remittitur is a substitution of the court's judgment for that of the jury regarding the appropriate award of damages. The court orders a remittitur when it believes the jury's award is unreasonable on the facts. A constitutional reduction, on the other hand, is a determination that the law does not permit the award. Unlike a remittitur, which is discretionary with the court . . . , a court has a mandatory duty to correct an unconstitutionally excessive verdict so that it conforms to the requirements of the due process clause." (Johansen v. Combustion Engineering, Inc. (11th Cir. 1999)170 F.3d 1320, 1331-1332, fn. & citation omitted.)

"Thus, in deciding the constitutional maximum [for a punitive damage award], a court does not decide whether the verdict is unreasonable based on the facts; rather, it examines the punitive damages award to determine whether it is constitutionally excessive and, if so, may adjust it to the maximum amount permitted by the Constitution." (Gober, supra, 137 Cal.App.4th at p. 214.) This is so because " 'the level of punitive damages is not really a "fact" "tried" by the jury.' " (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 437.) Thus, "the jury's award of punitive damages does not constitute a finding of 'fact' " to which an appellate court must defer. (Ibid. )

As we discussed in Buell‑Wilson I and reiterate in this opinion, we remitted the noneconomic damages to an amount supported by the evidence and omitted any punitive element.

Moreover, in deciding the constitutionally permissible amount of punitive damages in our original opinion, we conducted a de novo review of the punitive damages award, applying the factors dictated by State Farm and other applicable precedent. Our Buell‑Wilson I opinion, however, did not consider or justify the amount to which we reduced the punitive damages award by reference to potential harm to others. The only evidence we cited in our discussion of punitive damages related to harm to third parties was in our discussion of the reprehensibility of Ford's conduct. (Buell‑Wilson I, supra,141 Cal.App.4th at pp. 568-569.) Thus, in conducting our independent review and arriving at a constitutionally permissible amount of punitive damages, we satisfied the due process concerns of Ford.

For example, in Romo, supra,113 Cal.App.4th 738, disapproved on other grounds in Johnson, supra,35 Cal.4th at pages 1205-1207, 1213, the Court of Appeal was reconsidering a punitive damages award in light of State Farm after the United States Supreme Court vacated the Court of Appeal's original decision. (Romo, supra,at p. 743.) The Court of Appeal concluded the jury instructions given by the trial court violated State Farm and prejudiced Ford. (Romo, supra, at pp. 753-754.) However, rather than remanding the matter for a new trial on punitive damages, the Court of Appeal reduced the award to an amount that was not constitutionally excessive: "While the underlying facts supporting a punitive damages award are for the jury to decide, the amount of punitive damages must be independently reviewed on appeal. [Citation.] In conducting such review, we remove any prejudice accruing to the defendant as a result of misinstruction concerning the amount of such award; we do so by modifying the judgment to reflect a level of punitive damages below which we believe no properly instructed jury was reasonably likely to go. [Citation.] Accordingly, our reduction of the award satisfies the due process interests of defendant." (Id. at p. 754.)

In determining as a matter of law the constitutionally appropriate amount of punitive damages when this matter was first before us, we also necessarily reduced the award to comport both with due process principles, including the notion Ford could not be punished for harm to third parties, and the factors to be considered under State Farm. We made an independent determination under these factors that Ford's conduct justified an award of punitive damages in an amount equal to a two-to-one ratio to the compensatory damages, which we had already reduced to eliminate any potential punitive effect. We did not consider harm to third parties (except when assessing the reprehensibility of Ford's conduct) when making that award.

There is no basis for a further reduction in the award or a new trial on punitive damages, as the reduced amount of the award comports with the holding of Philip Morris.

c. Evidence and arguments at trial

Ford has also failed to demonstrate that evidence or argument at trial prejudiced it in a manner that would require, under Philip Morris, a further reduction in the punitive damages award or a new trial on punitive damages.

(1) Evidence admitted at trial

Ford first asserts that admission of evidence at the liability and compensatory damages phase of the trial regarding the Bronco II's and Explorer's propensity to roll over was itself a due process violation under Philip Morris. However, as we explained in our original decision, and again in this opinion, ante, that evidence was properly admitted as relevant to issues related to proof the product was defective in the plaintiffs' case-in-chief. The Bronco II and Explorer evidence was relevant during the liability phase of the trial to show, under California law, that Ford had notice of the defective product. (Hasson, supra, 32 Cal.3d at p. 404.) Further, as stated, ante,that evidence was admissible to show Ford acted with malice on the issue of whether the plaintiffs were entitled to an award of punitive damages. "Marketing a product that is known to be defective and dangerous to consumers supports an inference of malice for purposes of punitive damages." (Karlsson, supra,140 Cal.App.4th at p. 1230; Grimshaw, supra,119 Cal.App.3d at p. 814; Taylor, supra,24 Cal.3d at p. 895 [malice may be shown by fact the defendant had acted with a "conscious disregard of the safety of others"].)

As our Supreme Court explained in Johnson, United States Supreme Court precedent "makes clear that due process does not prohibit state courts, in awarding or reviewing punitive damages, from considering the defendant's illegal or wrongful conduct towards others that was similar to the tortious conduct that injured the plaintiff or plaintiffs. [A] civil defendant's recidivism remains pertinent to an assessment of culpability." (Johnson, supra,35 Cal.4th at p 1204.) " ' "[P]unitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition" ' [citation] and [State Farm] did not limit the concept to punishment and deterrence purely on behalf of the plaintiff." (Id. at p. 1206.)

Nowhere does Philip Morris suggest due process requires trial courts to exclude otherwise relevant, admissible evidence in the process of determining liability or whether an award of punitive damages is warranted. "A basic principle of federalism is that each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders, and each State alone can determine what measure of punishment, if any, to impose on a defendant who acts within its jurisdiction." (State Farm, supra,538 U.S. at p. 422.)

Rather, Philip Morris held that in appropriate cases courts will need to ensure, by appropriate jury instructions and limitations on argument by counsel, that evidence of third party harm is not used to punish defendants when determining the amount of punitive damages to award.

(2) Closing arguments at liability phase

Ford also attacks statements made by plaintiffs' counsel in closing arguments that it claims were in violation of Philip Morris. This contention is unavailing.

In the first phase of the bifurcated trial, the jury was deciding liability, compensatory damages, and whether plaintiffs were entitled to punitive damages. Ford points to closing arguments counsel for plaintiffs made there that allegedly invited the jury to punish Ford for harm to third parties. Specifically, Ford points to the following arguments made by plaintiffs' counsel:

"They go ahead and release the Bronco II in 1983 . . . knowing it will roll over and kill or catastrophically injure many people, which it has. []Fraud, oppression, malice, these are issues that relate to one question that has [sic] clear and convincing. T[his is t]he last question on the verdict form, [and] it is the most importan[t] [answer] you will give in this case. . . . [] . . . This is the report to the Consumers Union. Bronco II. [The following] [q]uotation [appears] in the document[:] 'We are in deep trouble regarding our rollover rates. Our data are not terribly favorable. Our rollover rate is three times higher than the Chevy S‑10 Blazer. We think, however, we have clouded their minds.' Ron Campbell testifies that Ford is aware by 1989 that many people are killed or seriously injured in [Bronco II] rollovers. Right in this time period, and they are going out to market with this new launch [i.e., the Explorer] with Job 1 with the engineers telling them [that it had] the same problems. Conscious, deliberate, oppressive, fraudulent conduct. [] . . . [] Hundreds of Explorer rollover cases. [Ford expert] Tandy, involved at least in dozens of on-road untripped Explorer rollover cases. And I cross-examined [Ford expert] Germane, from other cases . . . . Cases that these guys are working on together. Ford management's willingness to accept this risk from the Bronco II through the [1997 model Explorer] is the definition precisely of fraud, malice and oppression." (Italics added.)

Counsel's argument in the first phase of the trial did not ask the jury to punish Ford for harm to third parties. Rather, as discussed, ante,this argument properly referred to facts supporting entitlement to an award of punitive damages, i.e., whether Ford's actions demonstrated malice, fraud and/or oppression. (See Karlsson, supra,140 Cal.App.4th at p. 1230; Grimshaw, supra,119 Cal.App.3d at p. 814; Taylor, supra,24 Cal.3d at p. 895.) Philip Morris does not stand for the proposition that juries cannot consider the repeated nature of a defendant's conduct in determining whether to award punitive damages, and the factors used to reach that conclusion. Rather, it only held that in determining the amount to award, juries could not punish defendants for harm caused to third parties.

(3) Closing arguments at punitive damages stage

The statements made by plaintiffs' counsel in the bifurcated punitive damages closing argument also did not create a "significant risk" the jury would punish Ford for harm to third parties. Ford focuses on the following arguments by counsel:

"So you understand what the consequences and what the risk factor was that they voluntarily, at the highest level of this company, chose to put people in wheelchairs, brain damaged or death, in a defectively designed product, their decision to put this vehicle out to the market in California. And I am focusing in this argument just on our state. And the effects it has on the people driving these vehicles out there on the highway, not knowing what they are in for if they should do a simple avoidance maneuver. That is the ramification in California, without fixing its known stability problems. That was callous, that was willful disregard. Did they do the test? No.  The test drivers are out on the roads of California. Willful disregard of the health and safety of [Mrs. Wilson] and those like her. Was this a single isolated incident? No.  You have heard of others in California. Just a few we were allowed to present. [] History repeated itself.They had had the same problem before. The same issues. Did they learn? Did they care? Did they really care? [] [T]housands of these vehicles were manufactured and sold in their defective condition and they are on our highways in California. And every time we look at one of those vehicles, we hope and pray there is no [accident] avoidance maneuver necessary. [] . . . [] [R]eprehensibility of the conduct I submit to you, here in California, the unlawful conduct taking place in this state that should bear the weight of your discussion and consideration. [] . . . [] This is not only . . . a case involving one family here in California, but . . . they marketed to specifically, the soccer moms, the women with babies, the toddler seats, the families." (Italics added.)

Based on our review of the record, plaintiffs' counsel was not asking the jury to punish Ford for harm done to third parties. Rather, counsel was discussing the repeated nature of Ford's actions in arguing the reprehensibility of Ford's conduct. That argument was entirely proper and did not create a "significant risk" the jury would punish Ford for injuries to third parties: "California has long endorsed the use of punitive damages to deter continuation or imitation of a corporation's course of wrongful conduct, and hence allowed consideration of that conduct's scale and profitability in determining the size of the award that will vindicate the state's legitimate interests." (Johnson, supra,35 Cal.4th at p. 1207.) "Nothing [State Farm or Philip Morris have] said about due process review requires that California juries and courts ignore evidence of corporate polices and practices and evaluate the defendant's harm to the plaintiff in isolation." (Ibid..)

Moreover, as discussed, ante,counsel's argument was within the parameters of the special jury instruction submitted by Ford based on the holding in State Farm that juries could not punish defendants for conduct outside the state in which the action was pending. That instruction informed the jury it could consider harm to "the citizens of California." Plaintiffs' counsel informed the jury, when discussing the impact of Ford's actions on third parties, that it was limited to considering Ford's conduct with regard to the citizens of California. Thus, plaintiff's argument was within the bounds of an instruction Ford itself drafted and proposed to the court. Ford cannot complain it was prejudiced by argument based on one of its own instructions.

DISPOSITION

The judgment is affirmed in all respects except as to the award of noneconomic damages to Mrs. Wilson and punitive damages to the Wilsons. The award of punitive damages to the Wilsons is reduced to $55 million. The award of noneconomic damages to Mrs. Wilson is reversed and remanded for retrial on the issue of the amount of noneconomic damages, unless Mrs. Wilson shall, within 30 days from the date this opinion is filed, file with the clerk of this court and serve upon Ford Mrs. Wilson's written consent to a reduction of her noneconomic damages award to $18 million, in which event the judgment shall be modified to award Mrs. Wilson noneconomic damages in that amount, which will result in a total reduced award to the Wilsons of $82,606,004 ($4,606,004 in economic damages + $18 million in noneconomic damages + $5 million in loss of consortium + $55 million in punitive damages), and in which event the

judgment will be affirmed in its entirety, as modified. (Cal. Rules of Court, rule 8.264(d).) The parties shall bear their own costs on appeal.

CERTIFIED FOR PUBLICATION

NARES, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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^[1] The White case involveda defect in parking brakes in F-series Ford trucks that caused the tragic death of the plaintiffs' three-year-old son when their truck rolled over him in the family's driveway. (White, supra,500 F.3d at pp. 966-967.)

^[2] Ford has attached a copy of the Advisory Committee report to a September 14, 2007 letter brief. We may properly take judicial notice of that document, and do so. (Evid. Code,  452.)

^[3] As discussed, ante,BAJI No. 14.72.2 was also recently amended to state that juries should consider third party harm in determining reprehensibility, but they could not punish a defendant for that third party harm.

^{[4]CACI No. 3945 provides in part: "If you decide to award punitive damages, you should consider all of the following in determining the amount: [] (a) How reprehensible was [name of defendant]'s conduct? In deciding how reprehensible [name of defendant]'s conduct was, you may consider, among other factors: []1. Whether the conduct caused physical harm; []2. Whether [name of defendant] disregarded the health or safety of others; []3. Whether [name of plaintiff] was financially weak or vulnerable and [name of defendant] knew [name of plaintiff] was financially weak or vulnerable and took advantage of [him/her/it];[]4. Whether [name of defendant]'s conduct involved a pattern or practice; and []5. Whether [name of defendant] acted with trickery or deceit."}