Citations
- 159 Cal. App. 4th 655
Full opinion text
Opinion
CROSKEY, J.
Philip Moms USA, Inc. (Philip Morris), a cigarette manufacturer, appeals a judgment in favor of Betty Bullock awarding her compensatory and punitive damages after a jury trial. Philip Morris challenges the findings of liability on several counts based on products liability and fraud, the admission of evidence, the refusal of proposed jury instructions relating to liability and punitive damages, and the amount of the punitive damages award. Jodie Bullock, Betty Bullock’s successor in interest, also appeals, challenging a conditional new trial order that reduced the amount of punitive damages by way of remittitur. Bullock’s attorney, Michael J. Piuze, appeals an order awarding attorney fees against him as a sanction.
We conclude that Philip Morris has shown no error with respect to its liability for fraud and products liability, but that the refusal of Philip Morris’s proposed instruction not to impose punishment for harm caused to nonparties to the litigation was error. We therefore affirm the judgment as to the finding of liability, the award of compensatory damages, and the finding that Philip Morris was guilty of oppression, fraud, or malice, and reverse the judgment as to the amount of punitive damages, with directions to conduct a new trial limited to determining that issue. We also hold that the court had no authority to award attorney fees as a sanction against Piuze and reverse the sanctions order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background?
Bullock smoked cigarettes manufactured by Philip Morris for 45 years from 1956, when she was 17 years old, until she was diagnosed with lung cancer in 2001. She smoked Philip Morris’s Marlboro brand of cigarettes until 1966, and then switched to its Benson & Hedges brand.
Scientific and medical professionals in the United States and worldwide generally agreed by the late 1950’s that cigarette smoking caused lung cancer, after several epidemiological studies reached that conclusion. Philip Morris and other cigarette manufacturers sought to cast doubt on the increasing body of knowledge supporting the conclusion that smoking caused lung cancer and sought to assuage smokers’ concerns. To that end, Philip Morris and other cigarette manufacturers issued a full-page announcement in newspapers throughout the United States in January 1954 entitled “A Frank Statement to Cigarette Smokers.” The announcement stated, “Recent reports on experiments with mice have given wide publicity to a theory that cigarette smoking is in some way linked with lung cancer in human beings,” and stated, “[d]istinguished authorities point[ed] out” that there was no proof that cigarette smoking caused cancer and that “numerous scientists” questioned “the validity of the statistics themselves.”
That announcement also stated, “We accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business, [f] We believe the products we make are not injurious to health, [f] We always have and always will cooperate closely with those whose task it is to safeguard the public health.” It announced the formation of the Tobacco Industry Research Committee and stated, “We are pledging aid and assistance to the research effort into all phases of tobacco use and health. This joint financial aid will of course be in addition to what is already being contributed by individual companies, [f] . . . [|] In charge of the research activities of the Committee will be a scientist of unimpeachable integrity and national repute. In addition there will be an Advisory Board of scientists disinterested in the cigarette industry. A group of distinguished men from medicine, science, and education will be invited to serve on this Board. These scientists will advise the Committee on its research activities.” In the years that followed, the tobacco industry research committee and its publicists disseminated the message that there was no proof that cigarette smoking was a cause of lung cancer and other diseases through news releases, distribution of research and editorial materials favorable to the tobacco industry, personal contacts with editors, journalists, and producers, and other means.
Philip Morris for many years publicly continued to insist that there was no consensus in the scientific community that cigarette smoking was a cause of lung cancer and that Philip Morris was actively pursuing scientific research to resolve the purported controversy, while privately acknowledging that there was no true controversy, that its true goal was to discredit reports that linked smoking with lung cancer, and that Philip Morris had no intention of funding research that would reveal the health hazards of smoking. The Tobacco Institute, a trade organization funded by Philip Morris and other cigarette manufacturers, issued a press release in 1961 discrediting a recent article and stating that the views that smoking caused cancer “are a subject of much disagreement in the scientific world” and “the cause or causes of lung cancer continue to be unknown.” The Tobacco Institute stated in a press release in 1963 that the tobacco industry was “vitally interested in getting the facts that will provide answers to questions about smoking and health,” and described the industry’s research efforts as a “crusade for research—in the agricultural stations, the scientific laboratories, and the great hospitals and medical centers of the nation.” It stated, “the industry does not know the causes of the diseases in question.”
A cigarette company executive appearing before Congress in 1965 on behalf of several cigarette manufacturers, including Philip Morris, stated that “[n]early everyone familiar with these difficult problems will agree . . . that there is a very high degree of uncertainty” whether “smoking causes cancer or any other disease.” Later that year, the Tobacco Institute issued a press release stating, “Research to date has not established whether smoking is or is not causally involved in such diseases as lung cancer and heart disease, despite efforts to make it seem otherwise. The matter remains an open question—for resolution by scientists.” The press release stated, “we are earnestly trying to find the answers,” and “If there is something in tobacco that is causally related to cancer or any other disease, the tobacco industry wants to find out what it is, and the sooner the better. If it is something in tobacco or the smoke, I am sure this can be remedied by the scientists.”
Philip Morris’s chief executive officer and chairman of the Executive Committee of the Tobacco Institute, Joseph Cullman III, stated on the television news program Face the Nation (CBS, Jan. 3, 1971), “if any ingredient in cigarette smoke is identified as being injurious to human health, we are confident that we can eliminate that ingredient.” He stated further, “We do not believe that cigarettes are hazardous; we don’t accept that.” The Tobacco Institute issued a report in 1979 entitled Smoking and Health 1969-1979: The Continuing Controversy, stating, “Scientists have not proven that cigarette smoke or any of the thousands of its constituents as found in cigarette smoke cause human disease.” The Tobacco Institute issued a report in 1984 entitled The Cigarette Controversy: Why More Research Is Needed, stating, “it is not known whether smoking has a role in the development of various diseases ... a great deal more research is needed to uncover the causes and the mechanisms involved in their onset.” The 1984 report stated that the theory that cigarette smoking causes various diseases “is just that, a theory” and stated, “There were basic flaws in the methods used in the major epidemiological surveys that cast doubts on the accuracy of the claimed correlations.”
Contrary to its repeated public pronouncements, the evidence shows that Philip Morris privately acknowledged the link between cigarette smoking and lung cancer and other diseases and sought to avoid promoting any research that would reveal that link. An internal document prepared by Philip Morris in 1961 for purposes of research and development stated, “Carcinogens are found in practically every class of compounds in smoke,” and provided a “partial list” of 40 “carcinogens” in cigarette smoke.
A 1970 memorandum from a Philip Morris research scientist to its president stated of the Council for Tobacco Research, the successor of the Tobacco Industry Research Committee: “It has been stated that CTR is a program to find out ‘the truth about smoking and health.’ What is truth to one is false to another. CTR and the Industry have publicly and frequently denied what others find as ‘truth.’ Let’s face it. We are interested in evidence which we believe denies the allegation that cigarette smoking causes disease.” Notes from a 1978 meeting of cigarette company executives and legal counsel stated that the Tobacco Industry Research Committee “was set up as an industry ‘shield’ ” and that the Council for Tobacco Research “has acted as a ‘front.’ ”
Dr. William Farone, a chemist employed by Philip Morris as a scientific researcher beginning in 1976 and as director of applied research from 1977 to 1984, testified at trial that his superiors informed him that cigarette smoking caused cancer and was addictive when he first began to work for the company. Dr. Farone testified that during his years at Philip Morris there was no controversy among its scientists as to whether smoking caused diseases, and that public statements that it was not known whether smoking played a role in the development of various diseases, and that a great deal more research was needed to identify the causes of the diseases, were false. He testified that another public statement challenging the epidemiological research as inconclusive was a misleading half-truth, and that Philip Morris’s scientists knew that cigarette smoke contained carcinogens and that the carcinogens caused cancer.
Dr. Farone testified that Dr. Thomas Osdene, Philip Morris’s director of research, and others told him on several occasions that Dr. Osdene’s real job, and the job of scientists working under him, was to maintain the appearance of a scientific controversy concerning smoking and health. Moreover, Dr. Farone testified that Philip Morris performed no animal toxicity studies of cigarettes in the United States, pursuant to a “gentleman’s agreement” with other cigarette manufacturers, but arranged for a company in Germany to perform toxicity tests on animals there. Other Philip Morris scientists explained to Dr. Farone that the reason for testing cigarettes abroad was so the results would not be available by subpoena in the United States. The test results were sent to Dr. Osdene, usually at his home, who would report the results to other Philip Morris scientists orally and destroy the written records.
Philip Morris conducted animal research in the United States on the addictive effects of nicotine in the early 1980’s. It sought to develop a substitute for nicotine that would produce the same addictive effects but without the adverse cardiovascular effects of nicotine. Philip Morris closely guarded the results of its research and threatened to sue its former scientists who proposed publication of an article. Philip Morris successfully developed nicotine analogs and had the ability to remove nicotine from cigarettes, but did not do so. Moreover, Philip Morris added urea to cigarettes, which becomes ammonia when heated, to enhance the effect of nicotine. Philip Morris added approximately 250 different substances to tobacco in cigarettes to enhance the flavor and for other purposes. A former Philip Morris research scientist who worked for the company in the early 1980’s testified, “Never once in my whole time at the company did I hear any concern for the customer, other than one scientist^ who was complaining that he was repeatedly—repeatedly having his research changed in direction any time he came upon some hot research.”
Philip Morris heavily advertised its cigarettes on television in the 1950’s and 1960’s, until the federal government banned cigarette advertising on television in 1970. Television advertising had a particularly strong influence on youths under the age of 18, for whom there was a positive correlation between television viewing time and the incidence of smoking. Philip Morris’s print advertisements for Marlboro and other cigarette brands in 1956, when Bullock began smoking at the age of 17, and generally in the years from 1954 to 1969, depicted handsome men and glamorous young women. Some advertisements featured slogans such as “Loved for Gentleness” and “ ‘The gentlest cigarette you can smoke.’ ”
Philip Morris and other cigarette manufacturers entered into a master settlement agreement (MSA) with 46 states, including California, in 1998 settling civil litigation by the states against the manufacturers. The manufacturers denied the allegations of wrongdoing and admitted no liability, but agreed to several restrictions on the advertising and promotion of cigarettes. They also agreed to dissolve the Tobacco Institute, the Council for Tobacco Research, and the Council for Indoor Air Research, and agreed not to target youths as smokers or potential smokers, suppress research on the health hazards of smoking, or make any misrepresentation of fact concerning the health consequences of smoking. The participating cigarette manufacturers also agreed to pay several billion dollars per year to the states, with each manufacturer responsible for a portion of the total payment according to its market share.
Philip Morris issued a statement on its Internet site in December 1999 acknowledging for the first time: “There is an overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema and other serious diseases in smokers. Smokers are far more likely to develop serious diseases, like lung cancer, than non-smokers. There is no ‘safe’ cigarette. These are and have been the messages of public health authorities worldwide.” The statement also acknowledged that cigarette smoking is addictive.
2. Trial Court Proceedings
Bullock sued Philip Morris in April 2001 seeking to recover damages for personal injuries based on products liability and fraud, among other counts. The jury trial commenced on August 20, 2002. The jury returned a special verdict in September 2002 finding that there was a defect in the design of the cigarettes and that they were negligently designed; that Philip Morris failed to adequately warn Bullock of the dangers of smoking before July 1, 1969; that it intentionally and negligently misrepresented material facts and made a false promise; that it intentionally concealed material facts before July 1, 1969; and that each of those acts of misconduct was a cause of Bullock’s injury. The jury found that Philip Morris was guilty of oppression, fraud, or malice with respect to each count. The jury awarded Bullock $850,000 in compensatory damages, including $100,000 in noneconomic damages for pain and suffering, and later awarded her $28 billion in punitive damages. The court entered a judgment on the jury verdicts.
The court denied Philip Morris’s motion for judgment notwithstanding the verdict and denied in part its motion for a new trial, but granted the new trial motion as to excessive damages, with the condition that the court would deny the new trial motion if Bullock consented to reduce the punitive damages award to $28 million. Bullock consented to the reduction. The court entered an amended judgment in January 2003 awarding a total of $28,850,000 in compensatory and punitive damages. Philip Morris appealed the amended judgment and the order denying its motion for judgment notwithstanding the verdict. Bullock filed a notice of appeal from “the Order . . . granting a new trial on the issue of punitive damages.” Bullock died in February 2003.
Piuze filed judgment liens in California, Virginia, and New York. The parties later stipulated that Philip Morris could deposit United States treasury bills in lieu of a bond to stay enforcement of the judgment pending appeal, and that the stay would become effective upon receipt of the deposit by the court clerk. After learning of the judgment liens, Philip Morris applied ex parte for an order staying enforcement of the judgment. The court granted the ex parte application on April 17, 2003, and entered an order temporarily staying enforcement of the judgment and directing Bullock to withdraw the liens. The court signed an order approving the stipulation on the deposit the same day.
Philip Morris filed a motion on April 29, 2003, for an award of sanctions against Piuze and Bullock under Code of Civil Procedure sections 128.6 and 177.5, arguing that they failed to withdraw the judgment liens as ordered by the court and engaged in other bad faith, frivolous conduct. The court granted the motion against Piuze in June 2003, awarding Philip Morris $45,809.48 in attorney fees payable by Piuze, under Code of Civil Procedure section 128.6. Piuze appealed the sanctions order.
CONTENTIONS
Philip Morris contends (1) the evidence failed to establish a design defect under the risk-benefit test because there is no substantial evidence that a safer alternative cigarette design was available, that the failure to use a safer design was a cause of Bullock’s lung cancer, or that Bullock would have smoked a safer cigarette if it were available; (2) the evidence failed to establish a design defect under the consumer expectations test or liability based on a failure to warn because there is no substantial evidence that the ordinary consumer was unaware of the dangers of cigarette smoking; (3) the evidence failed to establish that Bullock heard and actually relied on a false statement by Philip Morris; (4) the failure to instruct the jury that Philip Morris had a duty to disclose only if the information was not readily accessible to Bullock was error; (5) information that smoking causes lung cancer was readily accessible to Bullock, so Philip Morris had no duty to disclose that fact and cannot be liable for fraudulent concealment; (6) federal law preempts certain state law liability based on the advertising or promotion of cigarettes after July 1, 1969, and the court erred by admitting evidence of advertising and by failing to instruct the jury that certain liability cannot be based on that evidence; (7) the $28 billion punitive damages award was excessive under California law, the jury acted out of passion and prejudice, and the only appropriate remedy is a new trial; (8) Bullock’s counsel improperly appealed to the jurors’ passion and prejudice, emphasized Philip Morris’s wealth, and urged the jury to disregard the requirement that the amount of punitive damages must be reasonably related to the amount of compensatory damages; (9) the refusal of Philip Morris’s proposed instructions on punitive damages was error; (10) the court improperly instructed the jury to award punitive damages in an amount that would have a deterrent effect in light of Philip Morris’s financial condition; (11) the evidence of Philip Morris’s financial condition was unreliable and did not accurately reflect its ability to pay; (12) the $28 million punitive damages award after remittitur is unconstitutionally excessive; and (13) if we find error in the punitive damages award, a new trial should encompass liability as well as punitive damages.
Bullock contends the punitive damages award by the jury followed a fair trial, was presumptively correct, and should not have been reduced by remittitur because there was no compelling basis to do so. Piuze contends there was no statutory basis for the attorney fee award against him and also challenges the award on other grounds.
DISCUSSION
1. Philip Morris Has Shown No Error with Respect to Its Liability for a Design Defect
a. Risk-benefit Test
A product is defective in design for purposes of tort liability if the benefits of the design do not outweigh the risk of danger inherent in the design, or if the product, used in an intended or reasonably foreseeable manner, has failed to perform as safely as an ordinary consumer would expect. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418 [143 Cal.Rptr. 225, 573 P.2d 443].)
Philip Morris challenges the finding of liability for design defect based on a risk-benefit theory by challenging the sufficiency of the evidence that a safer alternative design existed and the sufficiency of the evidence that its failure to use a safer alternative design caused Bullock’s injuries. Philip Morris’s argument is based on the premise that a plaintiff alleging a design defect based on a risk-benefit theory must prove that the defendant could have used a safer alternative design. The jury, however, was not so instructed. The court instructed the jury to determine whether the benefits of the design outweighed the risks by considering several factors, but did not instruct that any single factor was essential: “In determining whether the benefits of the design outweigh its risks, you should consider, among other things, the gravity of the danger posed by the design, the likelihood that the danger would cause damage, the existence or nonexistence of warnings, the time of the manufacture, the financial cost of an improved design, and the adverse consequences to the product and the consumer that would result from an alternate design.”
Thus, Philip Morris challenges the verdict based on a purported rule of law on which the jury was not instructed. We review the sufficiency of the evidence to support a verdict under the law stated in the instructions given, rather than under some other law on which the jury was not instructed. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535 [254 Cal.Rptr. 492].) Each party in a civil proceeding must request complete and comprehensive instructions on its theory of the case; if a party fails to do so, the court ordinarily has no duty to instruct on its own motion. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951 [160 Cal.Rptr. 141, 603 P.2d 58], disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4 [88 Cal.Rptr.2d 19, 981 P.2d 944]; Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 701-702 [200 Cal.Rptr. 870, 677 P.2d 1147].) The jury’s responsibility is to decide factual issues and return a verdict in accordance with the law as instructed by the court. (Null, supra, at p. 1534; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 877 [242 Cal.Rptr. 184].) Absent instructional error, which Philip Morris does not argue, for an appellate court to review a verdict under a rule of law on which the jury was not instructed would allow reversal of a judgment on a jury verdict, requiring a retrial, even though neither the jury nor the court committed error. (Null, supra, at pp. 1534-1535.) Accordingly, we conclude that Philip Morris has shown no error with respect to the finding of liability for a design defect based on the risk-benefit test.
b. Consumer Expectations Test and Failure to Warn
Philip Morris contends the dangers of smoking cigarettes were known to the ordinary consumer before July 1, 1969, and thereafter, and the jury’s finding to the contrary was not supported by substantial evidence. We disagree. The evidence of Philip Morris’s extensive efforts, through various means, to mislead the public about the adverse health effects of smoking cigarettes and create a false controversy as to whether smoking caused lung cancer and other diseases, and evidence that smokers are particularly vulnerable to such manipulation, is sufficient to support the finding that the ordinary consumer was misled and was unaware of the dangers of cigarette smoking.
2. Substantial Evidence Supports the Findings of Liability for Intentional Misrepresentation and False Promise Verdicts
Philip Morris contends the evidence fails to establish that Bullock heard and actually relied on a false statement by Philip Morris and therefore does not support liability for intentional misrepresentation or false promise. Philip Morris cites cases holding that fraud must be alleged with particularity as support for the proposition that a plaintiff must prove that he or she actually relied on a particular statement by the defendant or by a third party repeating the substance of the defendant’s statement. Philip Morris contends Bullock failed to prove that she actually relied on a particular statement that was shown to be false at trial because she did not testify that she heard any of those statements.
As this record reflects, Bullock presented substantial evidence of extensive efforts by Philip Morris, sometimes in concert with other cigarette manufacturers, to mislead the public about the adverse health effects of smoking cigarettes through press releases, publications, advertising, and other means. Philip Morris sought to cast doubt on reports of adverse health effects by creating a false controversy as to whether smoking caused lung cancer and other diseases. Philip Morris, individually and through agents and trade associations, discredited the studies showing that smoking was likely a cause of serious illnesses and sought to reassure smokers that Philip Morris and other cigarette manufacturers were sponsoring research to resolve the purported controversy and that the research would be overseen by disinterested scientists.
Substantial evidence shows that contrary to those representations, Philip Morris knew that there was no valid scientific controversy concerning the adverse health effects of smoking, that it carefully avoided conducting or sponsoring research that might reveal the health hazards of smoking and concealed the results of research conducted in Germany on its behalf, and that it sought to maintain the false controversy and to make its cigarettes more addictive in order to increase sales. Philip Morris does not challenge the jury’s findings that Philip Morris made one or more material misstatements of fact and false promises with the intention of inducing reliance, or the finding that Bullock’s reliance was justified. Philip Morris’s sole challenge to the intentional misrepresentation and false promise verdicts is that Bullock failed to prove that she actually relied on particular statements.
A plaintiff need not prove that he or she directly heard a specific misrepresentation or false promise to establish actual reliance. Rather, actual reliance is established if the defendant made a misrepresentation to a third party, the defendant intended or had reason to expect that the substance of the communication would be repeated to the plaintiff and would induce the plaintiff’s reliance, and the plaintiff was misled when the substance of the communication was repeated to the plaintiff. (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1095-1098 [23 Cal.Rptr.2d 101, 858 P.2d 568]; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1660 [26 Cal.Rptr.3d 638]; Whiteley v. Philip Morris, Inc., supra, 117 Cal.App.4th at pp. 680-681; see Rest.2d Torts, § 533.) We therefore reject the contention that Bullock must prove that she heard and actually relied on a specific representation and conclude that Philip Morris has not shown error.
Philip Morris’s selective recitation of evidence focuses on whether Bullock was a direct or indirect recipient of specific representations. Philip Morris does not discuss the evidence tending to show that Philip Morris for many years engaged in a broad-based public campaign to disseminate misleading information and create a false controversy concerning the adverse health effects of smoking with the intention of causing smokers and potential smokers to rely on the substance of that misinformation, and that the substance of the misinformation reached Bullock indirectly through various means and media sources and caused her to begin and to continue smoking. We need not further discuss that evidence because by failing to challenge its sufficiency and failing to discuss the issue in any meaningful way, Philip Morris waives any challenge to the sufficiency of the evidence in those regards. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162, 479 P.2d 362]; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274 [90 Cal.Rptr.2d 41].)
3. Philip Morris Has Shown No Instructional Error with Respect to Fraudulent Concealment
Philip Morris requested an instruction pursuant to BAJI No. 12.36 stating, in pertinent part, “A duty to disclose known facts arises where one party knows of material facts and also knows that such facts are neither known nor readily accessible to the other party.” Bullock requested an instruction stating identical language. Philip Morris also requested an instruction pursuant to BAJI No. 12.37, stating, “Intentional concealment exists where a party: [][] (1) Knows of defects in a product and intentionally conceals them, or [f] (2) While under no duty to speak, nevertheless does so, but does not speak honestly or makes misleading statements or suppresses facts which materially qualify those stated.” Bullock requested an instruction stating only the second of the two enumerated alternatives, in language otherwise identical to the instruction requested by Philip Morris.
The court did not instruct the jury on BAJI No. 12.36, but instructed on BAJI No. 12.37 using the language requested by Philip Morris. The reason for the court’s failure to instruct on BAJI No. 12.36 does not appear in the appellate record. The conference on jury instructions was held in chambers and was not reported. No final set of written instructions showing the instructions given and refused appears in the record. There is no indication on either party’s proposed instruction on BAJI No. 12.36 that the court refused the instruction. Philip Morris represented to the court after the jury instruction conference that it would file a document showing Philip Morris’s proposed instructions refused by the court. The document later filed by Philip Morris stated that Philip Morris “objected, and objects, to each and every rejection by the Court of jury instructions proposed by Philip Morris,” but did not identify the instructions refused by the court. Moreover, Philip Morris did not argue in its new trial motion that the court erroneously refused to instruct on BAJI No. 12.36, so the court had no opportunity to address that argument.
The possible explanations for the court’s failure to give an instruction requested by both parties include that the court concluded that the instruction was improper, that one or both parties withdrew its request for the instruction and objected to the instruction during the unrecorded conference, that the parties or the court concluded that the instruction was unnecessary, or that the court or the party who prepared the final set of instructions simply overlooked the requested instruction and mistakenly omitted it. We cannot conclude from the appellate record whether one of these alternatives or some other scenario actually took place.
An appellant has the burden to provide a record sufficient to support its claim of error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [87 Cal.Rptr.2d 132, 980 P.2d 846].) Absent an indication in the record that an error occurred, we must presume that there was no error. (Walling v. Kimball (1941) 17 Cal.2d 364, 373-374 [110 P.2d 58]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [122 Cal.Rptr.2d 167].) An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the court’s rulings on proposed instructions. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846-847 [285 P.2d 919]; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 312 [136 Cal.Rptr. 603].) If the record does not show which party requested an erroneous instruction, the reviewing court must presume that the appellant requested the instruction and therefore cannot complain of error. (Lynch, supra, at pp. 846-848.) Similarly, if the record does not show whether an instruction was refused or “withdrawn, abandoned, or lost in the shuffle,” the reviewing court must presume that the appellant withdrew the instruction. (Huber, Hunt & Nichols, supra, at p. 312.) “[I]t is incumbent upon . . . appellant ... to make certain that the trial court has ruled [on a requested instruction] and that the record on appeal discloses that ruling before the alleged ruling may be assigned as error. [Citations.]” (Ibid.)
We conclude that the record is insufficient to show that the court refused the requested instruction. We presume that Philip Morris either affirmatively withdrew the instruction or omitted the instruction from the final set of instructions that Philip Morris prepared. Accordingly, Philip Morris has not shown instructional error with respect to fraudulent concealment.
4. Philip Morris Has Shown No Error with Respect to Preemption a. Applicable Federal Law
The Federal Cigarette Labeling and Advertising Act (FCLAA) (15 U.S.C. § 1331 et seq.) is “a comprehensive federal scheme governing the advertising and promotion of cigarettes.” (Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525, 541 [150 L.Ed.2d 532, 121 S.Ct. 2404] (Reilly)-, accord, 15 U.S.C. § 1331 [stating the purpose of the act is “to establish a comprehensive Federal Program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health”].) The express purposes of the act are to adequately inform the public of the dangers of smoking cigarettes and to protect the national economy from the burden of “diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.” (15 U.S.C. § 1331.)
As originally enacted in 1965 (Pub.L. No. 89-92 (July 27, 1965) 79 Stat. 282), the FCLAA mandated warnings on cigarette packages, preserved the authority of the Federal Trade Commission (FTC) to regulate unfair or deceptive acts or practices in cigarette advertising, and included a preemption provision. The Public Health Cigarette Smoking Act of 1969 (Pub.L. No. 91-222 (Apr. 1, 1970) 84 Stat. 87) amended the FCLAA in several ways, including by strengthening the required warning and modifying the preemption provision. (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 514-515 & fn. 9 [120 L.Ed.2d 407, 112 S.Ct. 2608] (Cipollone).) The preemption provision as amended in 1969 now reads, “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” (15 U.S.C. § 1334(b).) A majority of the justices in Cipollone held that in light of the express preemption provisions enacted in 1965 and 1969, the scope of preemption under each provision is limited to claims expressly preempted under each provision. (Cipollone, supra, at p. 517.) Invoking a presumption against preemption of state laws based on the exercise of police ' powers, the Cipollone court stated that Congress’s intent to preempt must be “ ‘clear and manifest.’ ” (Id. at pp. 516, 518; accord, Reilly, supra, 533 U.S. at pp. 541-542.)
A majority of the justices in Cipollone concluded that the phrase “[n]o requirement or prohibition . . . imposed under State law” in the current preemption provision (15 U.S.C. § 1334(b)) encompasses regulation both by positive enactments and by common law rules. The plurality opinion by Justice Stevens stated with regard to “requirement or prohibition”: “As we noted in another context, ‘[state] regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’ [Citation.]” (Cipollone, supra, 505 U.S. at p. 521 (plur. opn. of Stevens, J.).) The plurality also concluded that “under State law,” as used in the statute, is not limited to positive enactments. (Id. at pp. 522-523.) Justices Scalia and Thomas agreed with these points in a separate opinion. (Id. at pp. 548-549 (cone. & dis. opn. of Scalia, J.).)
A plurality of the Cipollone court held that section 1334(b) of title 15 of the United States Code preempted state law claims based on failure to warn of the health hazards of smoking to the extent the claims required a showing that the defendants’ advertising or promotions after 1969 “should have included additional, or more clearly stated, warnings.” (Cipollone, supra, 505 U.S. at p. 524 (plur. opn. of Stevens, J.).) The plurality also held that section 1334(b) preempted state law claims for fraudulent misrepresentation based on statements in advertising and promotional materials that minimized the health hazards of smoking and neutralized the required warnings. (Cipollone, supra, at pp. 527-528 (plur. opn. of Stevens, J.).) The plurality opinion explained that a fraudulent misrepresentation claim based on such a neutralization theory “is predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking. Such a prohibition, however, is merely the converse of a state-law requirement that warnings be included in advertising and promotional materials.” (Id. at p. 527.) The plurality concluded that the plaintiff’s fraudulent misrepresentation claim based on a neutralization theory was “inextricably related” to the failure to warn theory and therefore was preempted. (Id. at p. 528.)
The Cipollone plurality, however, held that section 1334(b) of title 15 of the United States Code did not preempt the plaintiff’s state law claims for fraudulent misrepresentation based on false statements of material fact made in advertising because “[s]uch claims are predicated not on a duty ‘based on smoking and health’ but rather on a more general obligation—the duty not to deceive.” (Cipollone, supra, 505 U.S. at pp. 528-529 (plur. opn. of Stevens, J.).) The plurality also held that the act did not preempt state law claims for breach of express warranty (id. at pp. 525-527) and conspiracy to misrepresent or conceal material facts (id. at p. 530).
The United States Supreme Court in Reilly, supra, 533 U.S. at pages 548-551, held that section 1334(b) of title 15 of the United States Code preempted Massachusetts’s regulations restricting outdoor and point-of-sale advertising of cigarettes. The court concluded, “Congress prohibited state cigarette advertising regulations motivated by concerns about smoking and health,” and “the concern about youth exposure to cigarette advertising is intertwined with the concern about cigarette smoking and health.” (Reilly, supra, at p. 548.) Reilly stated, “to the extent that Congress contemplated additional targeted regulation of cigarette advertising, it vested that authority in the FTC” (ibid.), and “Congress enacted a comprehensive scheme to address cigarette smoking and health in advertising and pre-empted state regulation of cigarette advertising that attempts to address that same concern, even with respect to youth.” (Id. at p. 571.) Reilly also stated, “we hold only that the FCLAA pre-empts state regulations targeting cigarette advertising. States remain free to enact generally applicable zoning regulations, and to regulate conduct with respect to cigarette use and sales.” (Id. at p. 550; see also In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1271-1275 [63 Cal.Rptr.3d 418, 163 P.3d 106] [analyzing Cipollone and Reilly].)
b. Admission of Evidence
Philip Morris filed motions in limine before trial seeking to preclude the admission of evidence pertaining to its advertising and promotion of cigarettes after July 1, 1969. Philip Morris argued that the evidence was inadmissible to support claims preempted by the FCLAA, was relevant for no other purpose and, therefore, was inadmissible for all purposes. The court concluded that the act did not preempt Bullock’s product liability claims or fraud claims based on deceptive advertising, determined that the evidence was relevant and admissible for purposes of those claims, and denied the motions. During trial, Philip Morris objected to evidence of its post-1969 advertising on grounds of preemption. The court overruled the objections.
Philip Morris argues in its opening brief on appeal that the admission of evidence of its advertising after July 1, 1969, was error because the federal act preempts liability based on advertising that minimizes health risks or targets youths. Philip Morris’s argument appears to be that such preemption made the evidence relied upon by Bullock inadmissible for all purposes. Evidence, however, may be admissible for one purpose but inadmissible for another purpose. (Evid. Code, § 355.) In its opening brief, Philip Morris does not challenge the court’s rulings that the evidence was admissible for purposes of Bullock’s product liability claims and fraud claims based on deceptive advertising. Bullock argues in her respondent’s brief that the evidence was admissible for purposes other than the preempted claims and cites the court’s rulings to that effect. Philip Morris argues in its reply brief that Bullock has waived the issue by failing to explain the purposes for which the evidence was admissible and argues summarily that the evidence was inadmissible for all purposes, but does not acknowledge the court’s determination that the evidence was admissible to prove those claims not preempted by the FCLAA; nor does Philip Morris explain why that ruling was incorrect.
Evidence of Philip Morris’s post-1969 advertising was admissible to support nonpreempted claims, including the counts for misrepresentation and false promise. Those counts were not “based on smoking and health” (15 U.S.C. § 1334(b)) because they were not based on either a positive enactment or a common law “prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking.” (Cipollone, supra, 505 U.S. at pp. 527-528 (plur. opn. of Stevens, J.).) Rather, the counts for misrepresentation and false promise were based on false statements and a duty not to deceive and therefore were not preempted. Philip Morris’s post-1969 advertising conveyed the message that smokers were glamorous, healthy, and carefree and supported Philip Morris’s efforts to deceive smokers and potential smokers concerning the adverse health effects of smoking. Evidence of Philip Morris’s post-1969 advertising therefore was probative on the intent to defraud and reliance elements of Bullock’s nonpreempted fraud claims.
Because Philip Morris has not shown that evidence of its post-1969 advertising was inadmissible for all purposes and the trial court properly concluded that such evidence was admissible in support of Bullock’s fraud claims, we hold that there was no error in its admission.
c. The Refusal of Philip Morris’s Proposed Preemption Instructions in the First Phase of Trial Was Not Error
Philip Morris filed a set of proposed jury instructions on May 23, 2002, including an instruction on preemption. Philip Morris filed a second set of “Proposed Jury Instructions” on August 19, 2002, including a modified preemption instruction. Philip Morris filed a set of “Proposed Supplemental Preliminary Jury Instructions” on August 21, 2002, including a modified version of the preemption instruction. Philip Morris filed a set of “Revised Proposed Jury Instructions” on August 28, 2002, expressly withdrawing the proposed instructions filed on August 19. The revised set included a preemption instruction identical to the instruction proposed on August 21.
Philip Morris then filed a set of “Supplemental Proposed Jury Instructions” on September 24, 2002, including two modified instructions on preemption. In that final set of proposed instructions, Philip Morris stated that the court held jury instruction conferences off the record on August 29 and September 11, 18, and 19, 2002, and that the attached instructions were proposed as alternatives to instructions previously submitted by Philip Morris and rejected by the court. The conferences on instructions were unrecorded, and no final set of instructions given and refused appears in the appellate record, as we have noted. The court instructed the jury that Philip Morris’s liability for fraudulent concealment and liability for failure to warn of a design defect were limited to acts and omissions prior to July 1, 1969, but did not instruct that other counts were similarly restricted.
Philip Morris contends the court erred by refusing to instruct that liability for misrepresentation and false promise could not be based on advertising after July 1, 1969, that minimized health risks or targeted youths. In its opening brief, Philip Morris quotes only the fourth sentence of its proposed instruction filed on May 23, 2002 (quoted ante in fn. 14), fails to mention its later proposed instructions, and argues without citation to the record that the court “refused to give the jury any preemption instructions relating to plaintiff’s misrepresentation and false promise claims.” Bullock argues in her respondent’s brief that Philip Morris fails to cite or discuss its revised proposed instruction filed on August 28, 2002, that the instruction was argumentative and confusing and the court properly refused it, and that Philip Morris has waived any error by failing to show that the requested instruction was proper. In its reply brief, Philip Morris acknowledges that the proposed instruction filed on May 23 was superseded, but argues that the proposed instruction filed on August 28 was substantially the same. Philip Morris cites the August 28 proposed instruction in its reply brief, but does not discuss it or explain why it was proper. Philip Morris does not respond to the argument that the instruction was argumentative and confusing or the argument that Philip Morris has waived any error by failing to explain why the instruction was proper.
A party is entitled to an instruction on each theory of the case that is supported by the pleadings and substantial evidence if the party requests a proper instruction. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [34 Cal.Rptr.2d 607, 882 P.2d 298] (Soule)] Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1107-1108 [16 Cal.Rptr.3d 521].) A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomprehensible to the average juror, and ordinarily has no duty to modify a proposed instruction. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158 [323 P.2d 391]; Boeken v. Philip Morris Inc., supra, 127 Cal.App.4th at p. 1678; Munoz v. City of Union City, supra, at p. 1108; Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 782 [142 Cal.Rptr. 1].) A court may refuse a proposed instruction if other instructions given adequately cover the legal point. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1185, fn. 11 [23 Cal.Rptr.2d 131, 858 P.2d 598].) Moreover, the refusal of a proper instruction is prejudicial error only if “ ‘it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule, supra, at p. 580.) “[W]hen deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled. [Fn. omitted.]” (Id. at pp. 580-581.)
An appealed judgment or challenged ruling is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193]; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [80 Cal.Rptr.2d 378].) An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [75 Cal.Rptr.2d 27]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [21 Cal.Rptr.2d 834].) Accordingly, we cannot conclude that the refusal to give an instruction was error absent an adequate showing that the proposed instruction was proper. (Kritzer v. Citron (1950) 101 Cal.App.2d 33, 39 [224 P.2d 808].) The extent of the showing required to demonstrate error depends on the complexity of the issues presented. Philip Morris’s proposed instruction of August 28, 2002, addressed complex legal issues and ran over 200 words. By failing to discuss the entire instruction and failing to explain why it was proper, Philip Morris fails to carry its burden to demonstrate error.
Moreover, the instructions given on each count obviated the need for a more general preemption instruction of the type proposed. The court instructed the jury that Philip Morris’s liability for fraudulent concealment and liability for failure to warn of a design defect were limited to acts and omissions prior to July 1, 1969. The court also instructed that an essential element of the counts for negligent and intentional misrepresentation was a false representation of fact or actionable opinion, and that Philip Morris could be held liable for false promise only if it made a promise that it did not intend to perform. The counts for misrepresentation and false promise were not “ ‘based on smoking and health’ ” within the meaning of the preemption provision because they were not based on either a positive enactment or a common law “prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking.” (Cipollone, supra, 505 U.S. at pp. 527-528 (plur. opn. of Stevens, J.).) Rather, the counts for misrepresentation and false promise were based on false statements and a duty not to deceive and therefore were not subject to preemption. By limiting liability for failure to warn or fraudulent concealment to acts and omissions before July 1, 1969, and by requiring a finding of a misrepresentation of fact or actionable opinion or a false promise to support liability for misrepresentation or false promise, the instructions given precluded liability based on a claim that Philip Morris’s advertising or promotion after July 1, 1969, either “should have included additional, or more clearly stated, warnings” (Cipollone, supra, 505 U.S. at p. 524 (plur. opn. of Stevens, J.)) or minimized the health hazards associated with smoking and neutralized the required warnings. We conclude that Philip Morris’s requested instruction was unnecessary, that it unduly repeated and emphasized a defense, that it was verbose and confusing, and that the court properly refused it.
d. The Refusal of Philip Morris’s Proposed Preemption Instructions in the Punitive Damages Phase of Trial Was Not Error
Philip Morris proposed additional instructions on preemption in the punitive damages phase of trial. Proposed instruction II stated, “You may not impose punitive damages based on defendant’s advertising and promotion of cigarettes after July 1, 1969 depicting cigarettes in a positive light, including depiction of smoking as enjoyable, where such advertising or promotion does not contain a specific affirmative misrepresentation of fact.” Proposed instruction JJ stated, “You may not impose punitive damages based on any finding that defendant attempted to direct advertising or promotion of cigarettes to underage or youth smokers.” The court refused both proposed instructions on the record. Philip Morris contends the refusal of the two instructions was error.
The court instructed the jury in the first phase of trial that Philip Morris’s liability for fraudulent concealment and failure to warn of a design defect was limited to acts and omissions prior to July 1, 1969, and that Philip Morris could be held liable for misrepresentation or false promise only if it misrepresented a material fact or actionable opinion or made a promise that it had no intention to perform, as stated ante. The court also instructed the jury in the second phase not to award punitive damages based on a failure to warn about the health risks of cigarettes. We conclude that those instructions adequately encompassed the rule of law stated in proposed instruction II, that liability for punitive damages could not be based on advertising or promotion after July 1, 1969, absent an affirmative misrepresentation of fact. We therefore conclude that the refusal of the proposed instruction was not error.
Proposed instruction JJ was based on Reilly, supra, 533 U.S. 525, and Cipollone, supra, 505 U.S. 504. Reilly held that the FCLAA preempted state law cigarette advertising regulations motivated by concerns about the health hazards of smoking, including regulations designed to restrict smoking by youths. (Reilly, supra, 533 U.S. at pp. 548-551.) Reilly involved positive enactments—regulations—rather than common law claims for damages and did not discuss preemption in the context of common law claims. Cipollone involved common law claims. A majority of the justices in Cipollone concluded that a common law claim is a “ ‘requirement or prohibition . . . imposed under State law’ ” within the meaning of the preemption provision (15 U.S.C. § 1334(b)). (Cipollone, supra, 505 U.S. at pp. 521-524 (plur. opn. of Stevens, J.); see id. at pp. 548-549 (cone. & dis. opn. of Scalia, J.).) A plurality of the justices in Cipollone held that section 1334(b) preempted state law claims based on failure to warn of the health hazards of smoking to the extent the claims required a showing that the defendants’ advertising or promotions after 1969 “should have included additional, or more clearly stated, warnings.” (Cipollone, supra, 505 U.S. at p. 524 (plur. opn. of Stevens, J.).) The plurality also held that section 1334(b) preempted state law claims for fraudulent misrepresentation based on statements in advertising and promotional materials that minimized the health hazards of smoking and neutralized the required warnings. (Cipollone, supra, 505 U.S. at pp. 527-528 (plur. opn. of Stevens, J.).) The plurality concluded that both types of claims were “ ‘based on smoking and health’ ” within the meaning of section 1334(b). (Cipollone, supra, 505 U.S. at pp. 524, 527-528 (plur. opn. of Stevens, J.).)
Proposed instruction JJ incorrectly stated the law because it precluded liability for punitive damages based on youth targeting activities that occurred before or after July 1, 1969, the effective date of the amended preemption provision (15 U.S.C. § 1334(b)). Section 1334(b) preempts claims based on advertising or promotional activities only to the extent that the claims are based on activities that occurred after July 1, 1969. (Hearn v. R.J. Reynolds Tobacco Co. (D.Ariz. 2003) 279 F.Supp.2d 1096, 1110-1111; Cruz Vargas v. R.J. Reynolds Tobacco Co. (D.P.R. 2002) 218 F.Supp.2d 109, 117, affd. (1st Cir. 2003) 348 F.3d 271; see Cipollone, supra, 505 U.S. at p. 524 (plur. opn. of Stevens, J.) [held that failure to warn claims were preempted only to the extent the claims arose from “post-1969 advertising or promotions”].) Thus, the trial court properly refused the instruction.
Moreover, it is clear that Bullock’s misrepresentation and false promise claims against Philip Morris were not “based on smoking and health” within the meaning of the preemption provision. Those claims were not based on either a positive enactment or a common law “prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking” (Cipollone, supra, 505 U.S. at pp. 527-528 (plur. opn. of Stevens, J.)). Instead, the claims were based on false statements. The court instructed the jury that Philip Morris could be held liable for misrepresentation or false promise only if it misrepresented a material fact or actionable opinion or made a promise that it had no intention to perform. With respect to the misrepresentation and false promise claims, there was no need to instruct the jury not to award punitive damages based on youth targeting in the advertising or promotion of cigarettes because those claims were not based on youth targeting and a duty “based on smoking and health,” but on a duty not to deceive. Therefore, apart from the reason already stated, the refusal of proposed instruction JJ was proper with respect to the counts for misrepresentation and false promise.
Finally, the court instructed the jury that Philip Morris’s liability for fraudulent concealment and failure to warn of a design defect was limited to acts and omissions prior to July 1, 1969, so there was no need to instruct that those claims could not be based on advertising or promotional activities after that date that targeted youths. Again, Philip Morris has not shown error.
5. Remittitur Was a Proper Remedy for the Jury’s Excessive Punitive Damages Award
Philip Morris challenges the punitive damages award under both California law and the Fourteenth Amendment due process clause. Philip Morris contends the $28 billion punitive damages award was excessive under California law, the jury acted out of passion and prejudice, and the only appropriate remedy is a new trial. The trial court, in ruling on Philip Morris’s new trial motion, determined that the amount awarded by the jury was excessive and that $28 million was an appropriate amount.
Code of Civil Procedure section 662.5, subdivision (b) authorizes a court granting a new trial motion on the ground of excessive damages to make its order subject to the condition that the motion is denied if the plaintiff consents to a reduction of the award to an amount that the court independently determines to be fair and reasonable. A court exercising this authority acts as an independent trier of fact. (Ibid.; Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 933 [148 Cal.Rptr. 389, 582 P.2d 980].) We must affirm the court’s decision if the court states adequate reasons for the decision and substantial evidence supports the decision. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 [93 Cal.Rptr.2d 60, 993 P.2d 388]; Neal, supra, at pp. 931-933 & fn. 18.) “[W]hen a trial court grants a new trial on the issue of excessive damages, whether or not such order is conditioned by a demand for reduction, the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the order.” (Neal, supra, at p. 932.) Accordingly, the relevant amount for purposes of our review is not the amount awarded by the jury, but the reduced amount ordered by remittitur. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 419 [185 Cal.Rptr. 654, 650 P.2d 1171].)
Code of Civil Procedure section 662.5 compels the conclusion that a new trial was not the only appropriate remedy for the excessive jury verdict. Rather, a conditional new trial order with a remittitur resulting in the denial of the new trial motion was a proper alternative remedy. We conclude, however, that a new trial to determine the amount of punitive damages is required for another reason.
6. The Refusal of Philip Morris’s Proposed Instruction Prohibiting Punishment for Harm Caused to Others Was Error
a. Due Process Limitations on Punitive Damages
The due process clause of the Fourteenth Amendment prohibits grossly excessive or arbitrary punishment of a tortfeasor and therefore limits the amount of punitive damages that a state court can award. (Sta