Colombo v. BRP US Inc. (230 Cal. App. 4th 1442, 2014)

Opinion

BENKE, Acting P. J.

Defendants and appellants Bombardier Recreational Products, Inc., and BRP US Inc. (collectively BRP) appeal a jury verdict in favor of plaintiffs and respondents Haley Colombo and Jessica Slagel (hereafter referred to individually by first name or collectively as plaintiffs). Because plaintiffs were not wearing wetsuit bottoms or similar protective clothing, Haley sustained serious and permanent injury to her rectum and Jessica to her vagina when, because of operator negligence, they fell off the back of a three-passenger watercraft manufactured by BRP, model GFI 4-TEC. Once in the water, Haley and Jessica were both injured when the powerful jet thrust from the watercraft ripped their flesh.

The jury found the owner of the personal watercraft (PWC), Robert Adamson doing business as Mission Bay Jet Sports (store; collectively Adamson), its operator and store employee, Brett Kohl (Kohl), and BRP each one-third liable. The jury also awarded punitive damages against BRP, finding its conduct manifested a reckless or callous disregard for plaintiffs’ rights and safety.

On appeal, BRP contends the evidence in the record is insufficient to support the jury’s causation and punitive damages findings, made under federal maritime common law. In the alternative, it contends the trial court erred when it refused, under this same law, to reduce the amount of punitive damages awarded each plaintiff to equal their respective compensatory damages awards; admitted evidence that, at the time of plaintiffs’ accident, BRP had notice of previous claims of orifice injuries to passengers but excluded evidence proffered by BRP to show the causes of the previous claims allegedly were not substantially similar to plaintiffs’ accident; and made a series of other rulings that BRP alleges amounted to a denial of a fair trial.

As we explain, we reject each of these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In late July 2007, then 16-year-old Haley and her older sister, Megan, visited San Diego to help their sister, Chelsea, move. Haley invited her longtime friend, Jessica, to come along as the group also hoped to go jet skiing in Mission Bay. Before the accident, Haley had never been on a PWC. Jessica had ridden on and operated a PWC a few times and told Haley it was fun.

Kohl—the operator of the BRP watercraft involved in the accident (hereafter sometimes subject PWC)—was the roommate of Chelsea’s boyfriend. As a reward for helping Chelsea, Chelsea’s boyfriend made arrangements for the group to meet Kohl at the store and then go to Mission Bay where they could ride the BRP PWC’s.

At Mission Bay, Kohl and Chelsea’s boyfriend unloaded two PWC’s from a trailer while Haley and Jessica waited on the shore. Haley and Jessica each wore a two-piece bathing suit. Nobody in the group, including the operators of the PWC’s, wore a wetsuit bottom or similar protective clothing. After putting on life jackets, Haley and Jessica waded into the water to meet Kohl. When Haley and Jessica boarded the subject PWC from the back, Kohl already was sitting in the “driver’s seat.” Kohl did not give them any instructions, safety or otherwise, about riding on the subject PWC.

Haley testified she had no plans that day to operate the subject PWC but was only going to ride as a passenger. In addition, she did not know how the PWC moved through the water, including how fast the water exited the jet-thrust nozzle located underneath the PWC, as it accelerated from a stopped position.

Haley also testified she did not see the “printed material” on the label located under the handlebars on the console of the subject PWC, which included the word “WARNING”; provided that severe injuries to “body cavities” can occur “as a result of falling into water or being near [the] jet thrust nozzle”; and provided that “[n]ormal swimwear does not adequately protect against forceful water entry into lower body opening(s) of males or females,” and, thus, “[a]ll riders must wear a wet suit bottom or clothing that provides equivalent protection” (hereafter sometimes subject warning). (Italics added.)

According to Haley, if this information had been placed on the back of the subject PWC where it could be seen by a passenger, she would have read and paid attention to it and either would not have ridden on the PWC or would have obtained a wetsuit bottom or similar protective clothing before riding. Haley also testified Kohl did not tell her or Jessica they needed to wear protective clothing to reduce or eliminate the risk of orifice injury.

Haley testified she and Jessica initially were having fun riding as passengers on the subject PWC. Haley sat directly behind Kohl and Jessica behind Haley. However, at some point, Kohl made a sharp turn, causing both girls to fall off the side of the subject PWC into the water. Haley felt Kohl was intentionally trying to throw them off to “show[] off.” Although not hurt, Haley said hitting the water “stung.” Both she and Jessica told Kohl they did not like being thrown off the subject PWC. When they reboarded the subject PWC, Jessica sat behind Kohl and Haley behind Jessica.

Without warning, Haley next felt a “really strong force just pull [her] back off the back of the jet ski with [her] legs open. And before [she] knew it, [she] had hit the water and had a sharp pain in [her] rectum, like someone stabbing [her] with a knife.” Haley put her hand into her bathing suit bottom and pulled out “a ball of flesh.” Haley also saw Jessica in the water, crying. Megan and Chelsea’s boyfriend, who had been riding nearby on the other PWC, came to their assistance. As she rode back to the shoreline, Haley testified she was bleeding profusely. Once at the shoreline, Haley saw blood running down Jessica’s legs.

An ambulance met Haley and Jessica and transported them to the emergency room. Haley had surgery to repair her external and internal anal sphincter muscles, which had been severed by the jet stream from the jet-thrust nozzle of the subject PWC. Haley wore a colostomy bag while she healed, including at school, until it was surgically removed about four months after the accident. At the time of trial, Haley continued to experience issues with anal control and leakage, which made her feel “isolated,” “different” and “ruined.”

Jessica testified she was 17 years old and entering her senior year in high school when the accident occurred. About a month earlier, Jessica had operated a PWC while vacationing in Hawaii with her family. On that occasion, Jessica was not told she needed to wear protective clothing before operating the PWC, and neither Jessica nor her family members wore such clothing before boarding the PWC. Jessica could not recall the manufacturer of the PWC she rode in Hawaii.

Jessica testified she also rode on and operated a PWC when she was 16, while visiting a relative in Florida. She also could not remember the name of the manufacturer of the PWC she rode in Florida but recalled her relative rented it at the beach. Jessica also did not receive any instructions then regarding the need to wear protective clothing before boarding the PWC nor did she wear any such clothing.

Jessica testified that, on the date of the accident, she and Haley helped Chelsea and then drove to the store, where they waited in the car. Afterwards, they drove to Mission Bay and watched from the shoreline while the two PWC’s were put into the water. Jessica put on a lifevest and, along with Haley, waded waist deep into the water where they were met by Kohl.

Although Jessica had operated a PWC before, she testified she did not know anything about the jet-thrust nozzle or how the watercraft was propelled through the water. She also did not see the subject warning on the console of the subject PWC because Kohl already was seated in the operator’s seat, and both she and Haley boarded from the back.

Jessica testified Kohl did not tell her she needed to wear protective clothing to ride on the PWC, and she did not know BRP included such a warning on the console of the PWC. Like Haley, Jessica told the jury if BRP had included such a warning or the word “danger” where she could see it before boarding the PWC, she would have paid attention to that warning and either acquired protective clothing or not ridden on the PWC.

Jessica testified she initially sat behind Haley. Jessica put her arms around Haley’s waist to hold on and could see Haley’s arms around Kohl’s waist. Jessica testified she and Haley were initially having fun until Kohl made a sharp turn, causing both girls to fall into the water. Both she and Haley told Kohl not to throw them into the water. In response, Kohl said, “I promise I won’t.”

After the girls reboarded the subject PWC, Jessica felt “like a push, a force, pushing [her] off the back of the jet ski.” She landed in the water with her legs spread and immediately felt pain in her vagina. Jessica said she felt like she had been “punched” and had “hit concrete.” Megan and Chelsea’s boyfriend helped Jessica onto their PWC because Jessica refused to ride back to shore with Kohl. At that point, Jessica said the blood from underneath her bathing suit flowed like a “faucet” and filled up the foot wells of the PWC.

At the hospital, Jessica had surgery to repair her vagina and the tear from her “rectum to [her] vagina.” At the time of trial, Jessica testified that she still experienced some pain and discomfort, that she occasionally took a stool softener, and that, if she decides to have children someday, she likely would have to deliver by cesarean section.

Kohl testified that he worked at the store for several months before the accident. Before being hired by Adamson, Kohl had operated PWC’s for many years. Once hired, Kohl rode the PWC’s “all the time.” Although customers renting a PWC were required by Adamson to complete certain “paperwork,” Kohl stated nothing in the paperwork warned that a wetsuit bottom or its equivalent must be worn to reduce or eliminate the risk of orifice injuries from a PWC’s jet-thrust nozzle. Kohl also stated that he never discussed the need to wear such clothing with a customer and never showed a customer the owner’s/operator’s guide for any of the BRP PWC’s rented by the store, which also included such a warning.

Kohl stated that the store did not offer wetsuits or similar protective clothing for sale to, or rental by, customers operating or riding on a PWC and that he only wore such clothing on a couple of occasions, and then not for protection, but instead when the water was cold or when he was taking a PWC into the open ocean. Kohl also stated that Adamson never brought to his attention the need for an operator or passenger of a PWC to wear protective clothing to prevent or reduce the risk of orifice injury from the jet-thrust nozzle.

On the day of the accident, Kohl testified he was in charge of the store because Adamson was on vacation. Kohl agreed to take the two PWC’s out after business hours at the request of his roommate, Chelsea’s boyfriend. Kohl said the group came to the store and then they all went to Mission Bay. Kohl provided each member of the group with a life jacket from the store.

After Haley and Jessica boarded the subject PWC, Kohl stated he started out slowly because of the “no-wake zone.” He then sped up and got the subject PWC on a “plane” as they headed to an area in Mission Bay designed only for PWC’s. As he operated the PWC about 25 to 35 miles per hour, Kohl thought Haley and Jessica were having fun. At some point, he made a sharp turn, and Haley and Jessica fell into the water. They told Kohl not to throw them off again.

After plaintiffs reboarded the subject PWC, Kohl testified one of them asked to be taken back to shore. He next applied full throttle in order to get the subject PWC on a plane, but he felt a pull and saw plaintiffs had fallen back into the water, this time directly behind the PWC. Kohl testified this was typically how he accelerated a PWC once he was stopped in the water.

When Haley got back on board the subject PWC, Kohl saw she was bleeding. Although Kohl generally understood water from the jet of the PWC came out fast, he did not know it had the capacity to tear human flesh; thus, he had no idea how Haley and Jessica had been injured when they fell off the back of the subject PWC. He stated this was the first time he had been involved in an accident involving a PWC and, as far as he knew, was also the first involving a PWC rented from the store.

Kohl testified Adamson never took him out on the water to show him how to operate the PWC safely nor did Adamson give Kohl the owner’s/operator’s guide containing the safety instructions of, or advise him to read the warning label on, the subject PWC. Kohl said he was aware of the warning label on the subject PWC but did not actually read it until after the accident.

Plaintiffs sued Adamson, Kohl and BRP. In response, Adamson brought an action in federal court under the Limitation of Liability Act (46 U.S.C. § 30501 et seq.; hereafter LOLA or the Act), seeking either exoneration or limitation of his liability equal to the value of the subject PWC, which was $6,005. During the LOLA proceedings, the instant action was stayed.

The record shows the Ninth Circuit Court of Appeals determined the accident in this case conferred admiralty jurisdiction under the LOLA. The district court thereafter conducted a bench trial that included witness and expert testimony, found that the Act did not apply either to exonerate Adamson or limit his liability to the value of the subject PWC, and lifted the stay.

The district court specifically found Haley and Jessica had satisfied their burden “of showing that their injuries were caused in the first instance by Kohl’s failure to warn [them] of the risks associated with orifice injuries,” which failure, it further noted, was “directly attributable to [Adamson] because [he] failed to adequately train and instruct [his] employees in the safe operation of PWCs, including warning of the risk of orifice injury and the need for protective clothing. Because [Adamson] negligently failed to instruct Kohl and other employees about the risk of orifice injury and the need for protective clothing, it was reasonably foreseeable that guest passengers, such as [Haley and Jessica], would be unaware of the risk of orifice injury and, therefore, subject to such injury.”

The district court also found Adamson failed to show under the LOLA that he lacked knowledge of the act of negligence causing the accident. In regard to this finding, the district court noted Adamson had a “non-delegable duty to train, instruct, and supervise [his] employees in the safe operation of PWCs, and to ensure that [his] employees communicated those safe practices to all those whose presence on board was reasonably foreseeable.”

Once the stay was lifted, this matter proceeded to trial, which included the testimony of at least 20 witnesses and a court-supervised visit by the jury to Mission Bay to inspect the subject PWC both in and out of the water. The jury subsequently returned its verdict, finding that the subject PWC was defective “because of inadequate warnings” and that this defect was a “substantial factor in causing harm” to both Haley and Jessica. The jury awarded Haley about $3,385 million in damages, which included past and future medical expenses and past and future noneconomic losses, and awarded Jessica about $1,063 million in similar damages. The jury also found Adamson, Kohl and BRP each one-third responsible for the harm suffered by plaintiffs.

Finally, the jury found under federal maritime common law that BRP’s conduct showed a “reckless or callous disregard for the rights of others” (sometimes hereafter punitive damages finding). As a result, after hearing additional testimony and evidence of BRP’s financial condition, the jury returned a second verdict in the punitive damages phase of the trial, awarding Haley and Jessica each $1.5 million. The judgment entered also included an award of prejudgment interest.

DISCUSSION

A. Causation

1. Guiding Principles

It is axiomatic that when, as in the instant case, an appellant challenges the sufficiency of the evidence to support a jury’s verdict, we apply the substantial evidence standard of review. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957 [124 Cal.Rptr.3d 78] (Cahill).) “ ‘ “[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .’ [Citation.] ... An appellate court does not reweigh the evidence or evaluate the credibility of witnesses, but rather defers to the trier of fact.” (Id. at pp. 957-958.)

“This standard, however, does not require us to blindly seize any evidence in support of the trier of fact’s findings in order to affirm the judgment. [Citation.] Rather, it compels us to determine whether a reasonable trier of fact could have found for the respondent based on the entire record. [Citation.] This is so because ‘substantial’ is not synonymous with ‘any’ evidence, but refers to the quality, not the quantity of the evidence. [Citation.] So, after reviewing the whole record, we must determine whether there exists substantial evidence, which is evidence of ponderable legal significance that is reasonable, credible and of solid value, supporting the challenged findings of the trier of fact. [Citation.] While substantial evidence may inevitably consist of inferences, they must be the result of logic and reason emanating from the evidence and not mere speculation or conjecture. [Citation.] It must actually be substantial proof of the essentials the law requires in the particular case. [Citation.]” (Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1282-1283 [154 Cal.Rptr.3d 719] (Quigley).)

The instructions to the jury included Judicial Council of California Civil Jury Instruction (CACI) No. 430, which defines “substantial factor” for purposes of causation as follows: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [][] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [34 Cal.Rptr.2d 607, 882 P.2d 298] [noting a manufacturer is liable if its product was a proximate cause of the plaintiff’s injury].)

The jury was also instructed with modified CACI No. 431, regarding “multiple causes” for purposes of causation: “A person’s fault may combine with another factor to cause harm. If you find that BRP’s fault was a substantial factor in causing Haley Colombo’s and Jessica Slagel’s harm, then BRP is responsible for the harm. BRP cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing Haley Colombo’s and Jessica Slagel’s harm.”

The jury was also instructed with respect to when a product is defective because of an inadequate warning: “A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings to foreseeable users of the product by the seller or other distributor and the omission of the instructions or warnings renders the product not reasonably safe for the product’s foreseeable users, [f] Haley Colombo and Jessica Slagel have the burden to show more likely than not the 2007 GTI [(watercraft manufactured by BRP)] was defective because of inadequate warnings or instructions and the inadequate warnings or instructions were a substantial factor in causing them harm.”

Finally, the jury was instructed regarding when a product warning is required: “Whether or not many persons would, when warned, decide to use the product, warnings are required to protect the interests of those reasonably foreseeable users or consumers who would, based on their own reasonable assessments of the risks and benefits, decline to use the product. The omission of such warnings renders the product not reasonably safe for the product’s foreseeable users.”

As noted by the above jury instructions, “ ‘[i]n the context of products liability actions, the plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.’ ” (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696 [11 Cal.Rptr.3d 807].) “ ‘The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.’ [Citation.] Thus, ‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor’ [citation], but a very minor force that does cause harm is a substantial factor [citation]. This rule honors the principle of comparative fault.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398].) “A plaintiff need not establish that a defendant’s product was the sole potential proximate cause of injury, but only that the defendant’s conduct substantially contributed to the injury and the circumstances make it just to hold the defendant responsible for the consequences of the accident. [Citation.]” (Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1302 [20 Cal.Rptr.3d 780] (Bunch).)

BRP does not contend any of these instructions were improper. It also does not contend its subject warning was adequate, at least for purposes of causation.

Instead, it argues there is insufficient evidence in the record to support the finding of the jury that its inadequate warning about the hidden danger of the jet-thrust nozzle and the need for passengers such as plaintiffs to wear protective clothing to prevent or reduce the risk of orifice injury was a substantial factor in causing plaintiffs’ harm. Specifically, it contends plaintiffs’ own “self-serving testimony,” that on the date of the accident they would have heeded such a warning had they seen it and either not ridden the subject PWC or obtained protective clothing before riding, was inadmissible. BRP also contends the testimony proffered by one of plaintiffs’ experts to establish causation was inadmissible.

2. Analysis

The jury instructions (which, as noted, BRP does not challenge on appeal) expressly provide that the trier of fact could consider plaintiffs’ testimony in determining whether they satisfied their burden to show the subject PWC was “defective because of inadequate warnings or instructions” and, if so, whether the “inadequate warnings or instructions were a substantial factor in causing them harm.” It is beyond dispute that Haley and Jessica were both “consumers, who would, based on their own reasonable assessments of the risks and benefits, decline to use the product” (italics added) if they were given a warning similar to the subject warning located on the console of the PWC, inasmuch as both testified to this very fact.

BRP did not challenge this evidence at trial. (See SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 563-564 [137 Cal.Rptr.3d 693] [noting the failure to object to evidence in the trial court generally results in the forfeiture of any appellate claim that such evidence was wrongfully admitted].) In any event, we conclude this evidence was properly admitted, as it is of reasonable, credible and solid value and supports the finding of a reasonable jury (see Quigley, supra, 214 Cal.App.4th at pp. 1282-1283) that BRP’s conduct in failing to give plaintiffs a warning similar to the one given to the operator was a substantial factor in causing their harm. (See Bunch, supra, 123 Cal.App.4th at p. 1304 [concluding the testimony of an 11-year-old victim that she would not have dived into four feet of water, breaking her neck, if the warning on the pool had been adequate, along with the testimony of two of her experts, was sufficient evidence to show the “lack of a persuasive label outlining the consequences of diving into the pool was a substantial factor in causing the injury”].)

Moreover, product safety and warnings expert William Kitzes testified on behalf of plaintiffs that the subject warning located on the console of the PWC was inadequate because plaintiffs did not and could not see it because Kohl was already seated in the operator seat when they initially boarded (from shore), and later reboarded (after they fell in the water), the watercraft. He further testified that an additional written warning, which would have been “highly inexpensive” to create and/or affix, should have been located at the rear or back of the subject PWC so that it was “readily visible” to passengers like Haley and Jessica.

Kitzes opined that BRP’s inadequate warning to PWC passengers of the risk of orifice injury from the powerful jet-thrust nozzle was a substantial factor in causing the injuries of plaintiffs, relying on the testimony of both Haley and Jessica that if they had been warned and instructed “to wear a wetsuit or heavy protective clothing[,] . . . [they] would have either worn such clothing or not gotten on the [subject PWC].”

When asked whether others beside Haley and Jessica would have heeded an adequate warning if in fact BRP had made one to PWC passengers, Kitzes testified; “I can’t say that every single person would react in a certain way. I can say that—that the literature and the studies have shown that the better the information is, the more likely that you will be able to . . . get someone to follow it, to comply with it, if they understand it and they need it. Now I can’t say that everybody will do that, because I don’t know. But based on the facts that were in the testimony, it seems apparent that had they [(i.e., Haley and Jessica)] been given that kind of warning, that they would not have endangered themselves.”

We conclude that Kitzes’s testimony is additional, substantial evidence supporting the finding of a reasonable jury (see Quigley, supra, 214 Cal.App.4th at pp. 1282-1283) that BRP’s warning to passengers was inadequate, thus making the subject PWC defective in design, and that this design defect was a substantial factor in causing plaintiffs’ harm. Although BRP in its opening brief generally attacks (without citation to the record) the substance of his testimony, contending Kitzes allegedly conceded that a differently worded or placed warning label allegedly would not have prevented the injuries to plaintiffs, we conclude that at most such testimony, when considered in its proper context, created a conflict in the evidence that the jury resolved in favor of plaintiffs. (See Bunch, supra, 123 Cal.App.4th at p. 1304 [concluding expert testimony that warning label on aboveground pool was inadequate for children between the ages of seven and 12 because it “failed to spell out any consequences of diving into shallow water” and noting that our Supreme Court has pointed out that even “ ‘ “a very minor force that does cause harm is a substantial factor” ’ ”]; see also Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 [46 Cal.Rptr.2d 427, 904 P.2d 834] [observing that when “considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment”].)

B. Punitive Damages

1. Federal Maritime Common Law

As the parties themselves recognize, punitive damages are allowable under federal maritime law and are awarded under a preponderance of the evidence standard of proof. (See In re Exxon Valdez (9th Cir. 2001) 270 F.3d 1215, 1226, 1232 [rejecting the clear and convincing standard in favor of the preponderance of the evidence standard of proof in concluding commercial fishermen were entitled to punitive damages from defendant Exxon].)

Moreover, the parties also recognize that an award of punitive damages under federal maritime law can be based on mere reckless conduct or gross negligence. (See, e.g., Exxon Shipping Co. v. Baker (2008) 554 U.S. 471, 493 [171 L.Ed.2d 570, 128 S.Ct. 2605] (Exxon) [explaining an award of punitive damages in federal maritime cases may be based on mere reckless conduct that is worse than negligence, but “is not intentional or malicious, nor is it necessarily callous toward the risk of harming others, as opposed to unheedful of it”]; Miles v. Melrose (5th Cir. 1989) 882 F.2d 976, 989 [noting to award punitive damages a defendant must have been guilty of “ ‘ “gross negligence, or actual malice or criminal indifference which is the equivalent of reckless and wanton misconduct” ’ ”].)

The Exxon court relied on the definition of recklessness from the Restatement Second of Torts when it concluded the defendant Exxon was liable for punitive damages for maritime property damage: “ ‘Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know ... of facts which create a high degree of risk of . . . harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.’ ” (Exxon, supra, 554 U.S. at pp. 493-494, quoting Rest.2d Torts, § 500, com. a, pp. 587-588); see Rest.3d Torts, Liability for Physical & Emotional Harm, § 2 [“A person acts recklessly in engaging in conduct if: (a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and (b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.”].)

2. Jury Instructions

The jury was instructed as follows regarding the conduct necessary to sustain, and/or the standard of proof for the imposition of, an award of punitive damages under federal maritime law:

“Conduct Manifesting A Reckless or Callous Disregard For the Rights of Others, Gross Negligence, Actual Malice or Criminal Indifference

“If you decide BRP was a substantial factor in bringing about harm to Haley Colombo and/or Jessica Slagel, then you must also decide whether BRP’s conduct manifests reckless or callous disregard for the rights of others, or shows gross negligence or actual malice or criminal indifference.

“ ‘Reckless or callous disregard’ is conduct demonstrated by one who knows or has reason to know of facts which create a high degree of risk of harm to another, and proceeds to act, or fails to act, in conscious disregard of or indifference to that risk.

“ ‘Malice’ means an intent to cause injury or despicable conduct done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his/her/its conduct and deliberately fails to avoid those consequences.

“ ‘Gross negligence’ is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or by failing to act.

“Plaintiffs Haley Colombo and Jessica Slagel each bear the burden of proving that it is more likely than not that BRP’s conduct manifested a reckless or callous disregard for the rights of others, gross negligence, actual malice, or criminal indifference.”

3. Substantial Evidence Standard of Review

Finally, the parties agree that we review the jury’s punitive damages findings for substantial evidence. (See Schlessinger v. Holland America (2004) 120 Cal.App.4th 552, 558, fn. 3 [16 Cal.Rptr.3d 5] [noting that “even if federal law governs issues of substance with respect to a claim pending in state court, ‘the law of the state controls on matters of practice and procedure’ ” and noting that, as such, “rules defining the standard of appellate review are, in general, procedural not substantive”].)

Under this standard, we do not reweigh the credibility of witnesses or resolve conflicts in the evidence, but instead “must view the conflicting evidence regarding punitive damages in the light most favorable to the judgment pursuant to the familiar substantial evidence rule. [Citation.]” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622 [103 Cal.Rptr.2d 492] (Rufo); see Cahill, supra, 194 Cal.App.4th at p. 957.)

4. Analysis

We conclude under a preponderance standard of proof that the record contains sufficient evidence to support the jury’s punitive damages finding. Indeed, the product safety manager of BRP, Shawn Eaves Le Blanc, testified in deposition (which was played for the jury) that at the time of his deposition, he already had testified on behalf of BRP in nine or 10 cases of orifice injuries to passengers riding on BRP watercraft; that before plaintiffs were injured, BRP knew passengers could fall off the back of a PWC and be severely injured by the jet thrust if they were not wearing protective clothing; and that, as a result of such knowledge, BRP warned against rapid acceleration of the watercraft, warned of the need to wear the proper protective clothing and made other product improvements in an attempt to keep passengers from falling off the back of its watercraft.

Le Blanc also testified that BRP considered placing additional written warning labels in locations other than under the front console of its watercraft. BRP ultimately refrained from doing so, however, despite its knowledge that a passenger boarding from the back of a watercraft while the operator was seated might not see the warning. Le Blanc testified BRP decided not to place additional written warnings on its watercraft, including on the back where the warning could be readily seen by passengers, because BRP wanted to avoid what he confusingly referred to as a “dilution effect” by “having more panels or warning labels about the same subject.”

LeBlanc admitted the risk of not wearing a wetsuit bottom or other protective clothing to prevent or reduce orifice injuries was not readily apparent to anyone walking up to use the watercraft. As such, Le Blanc agreed that a warning label was necessary to convey the risk and possible consequences to the passengers. He stated that BRP wanted the label to be visible and understandable.

In addition to this evidence, as noted ante, product safety and warnings expert Kitzes opined that the location of the subject warning on the front of the PWC console was inadequate to warn passengers of the potential risk of severe injury from the jet thrust of a PWC and that an additional written warning should have been located at or near the back of the watercraft so it was “readily visible” to passengers like Haley and Jessica who were most in need of such a warning. According to Kitzes, placing an additional warning on the back of a PWC would have been inexpensive and would have obviated BRP’s reliance on the operator of a PWC to inform passengers of the potential risks of orifice injury and how to protect themselves from those risks.

Kitzes testified that in or about 1995, BRP officials were aware that Yamaha used three warnings on its PWC’s. One warning was located directly under the handlebars of the PWC and stated: “Wear wetsuits to protect against abrasion, hypothermia, and injuries to orifices (rectum and vagina), from impact with the water surface.” Immediately above this warning were the additional warnings for the operator regarding the jet stream: “Strong jet streams can be dangerous and can result in injury when directed at body orifices” and “Do not apply throttle when someone is in the water behind the jet nozzle or when a passenger is climbing on.”

Finally, Yamaha also placed a warning at the back of the PWC, which stated: “Strong jet streams can be dangerous and can result in injury when directed at body orifices.” It further stated, “Wear a wetsuit to protect body” and “Don’t board vehicle if operator is applying throttle.”

In 1999, Yamaha was still using a three-label warning system on its PWC’s, with the back label for the passenger stating: “Warning, strong streams of water from the jet nozzle can be dangerous and can result in serious injury when directed at the body orifices (rectum and vagina). Wear a wetsuit to protect body. Do not board if operator is applying throttle.”

Kitzes opined that Yamaha’s use of three labels to warn of orifice injury showed that just using a console warning, such as that used by BRP, was “not enough to provide the necessary information to both the operator and the passenger, so they [(Yamaha)] developed two additional labels, which now both include ‘rectum and vagina,’ both include ‘strong streams from the jet nozzle,’ and it’s a far better analysis and warning” than that used by BRP.

Plaintiffs also offered the expert testimony of Alison Osinski, a recreational water and boating safety expert. Osinski opined that the jet-stream nozzle from a PWC posed a danger of severe injury or possibly death; that most people would not recognize the jet stream as dangerous because it was merely the movement or flow of water, in contrast to a propeller on the back of a boat, which most people would recognize as dangerous; and that because the jet releases water under the PWC, it is a hidden danger. She noted that, in her experience, both operators and passengers are unaware of the hazards of “rectal and vaginal blow-outs” from the jet thrust of a PWC.

Osinski testified the operator of a PWC holds on to the watercraft by holding the handlebars. Passengers riding on a PWC, however, either must hold on to a strap, which could be used by the first passenger sitting directly behind the operator, or to what Osinski called “side hand-holds” and “rear hold” that a second passenger could grab when sitting behind the first passenger. As part of her investigation, Osinski inspected the subject PWC that had been placed in storage following the accident. Based on the location of the strap, Osinski opined that Kohl was actually sitting on the strap when the accident occurred. She further opined that the handholds were not available to the first passenger and that a second passenger could use them only if he or she had long enough arms and leaned back slightly. Osinski concluded the handholds were inadequate to keep the second passenger on a PWC during “rapid acceleration.”

Osinski testified another way for passengers to stay on a PWC was merely to hold on to the person, or the lifevest worn by the person, sitting in front of him or her. However, according to Osinski, a novice rider, such as Haley or Jessica, would likely not understand the forces involved when a PWC accelerates and that is why BRP warned operators not to accelerate too quickly. Osinski opined this warning reflected knowledge by BRP that rapid acceleration was a foreseeable use of its products.

Osinski reviewed a safety video of the same PWC model plaintiffs were riding on the date of the accident and found the video never mentioned the risk of rectal and/or vaginal injuries from the jet-thrust nozzle. Osinski observed that the safety video showed some passengers and operators riding the PWC in “regular” swimsuits. Osinski also agreed with Kitzes that passengers boarding a PWC from the water would not see the warning on the console if the operator was seated on the PWC.

We conclude the above evidence is substantial and, when viewed under a preponderance standard of proof, supports the finding of a reasonable trier of fact (see Quigley, supra, 214 Cal.App.4th at pp. 1282-1283) that BRP engaged in conduct that manifested a reckless or callous disregard for the rights of plaintiffs by not adequately warning them of the known and severe risk of orifice injury and how to avoid or reduce that risk.

BRP nonetheless makes a series of contentions in support of its argument the punitive damages finding must be reversed. BRP first contends reversal is required because, although the jury found the warning inadequate, it also found the subject PWC was not otherwise defectively designed. BRP fails to cite any authority to support this contention. In any event, as discussed ante, federal maritime law encompasses more than one type of product defects, including, as demonstrated by the instant case, warning defects. (See Rest.3d Torts, Products Liability, §§ 1 [noting that “[o]ne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect”], 2 [noting there are three categories of product defect: (1) manufacturing defect, (2) design defect, and (3) inadequate instructions or warnings]; see also Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995 [281 Cal.Rptr. 528, 810 P.2d 549] (Anderson) [noting recovery in a “products liability” case is generally permitted for three kinds of defects: manufacturing defects, design defects, and warning defects (either an inadequate warning or a failure to warn)].) We thus reject this contention.

BRP next contends there is insufficient evidence to support the jury’s punitive damages finding because BRP (1) included the subject warning on the front console of the subject PWC, directly beneath the handlebars and in the immediate sight of the operator and (2) “employed teams of experienced professionals to test its vessels for thousands of hours before they were placed in the market.” BRP contends this evidence was allegedly uncontroverted by plaintiffs, and, thus, its “conduct was wholly inconsistent with a callous disregard for the safety of others or a similar state of mind.”

We reject this contention because, at its core, it requires us to reweigh the evidence and make one or more new findings under the guise of substantial evidence review. This we cannot do; that there was a conflict in the evidence in connection with the awards of punitive damages or even evidence that would support one or more different findings is not the test. Instead, we “must view the conflicting evidence regarding punitive damages in the light most favorable to the judgment pursuant to the familiar substantial evidence rule. [Citation.]” (Rufo, supra, 86 Cal.App.4th at p. 622; see Cahill, supra, 194 Cal.App.4th at pp. 958-959.)

BRP next contends the punitive damages finding must be reversed as a matter of law because BRP in fact warned of the specific risk of injury suffered by plaintiffs in this case. BRP relies on a series of cases—none of which appear to apply federal maritime common law—to support this contention. We nonetheless turn to a discussion of the key cases cited by BRP.

BRP cites to Richetta v. Stanley Fastening Systems (E.D.Pa. 2009) 661 F.Supp.2d 500 (Richetta). There, the plaintiff admitted he read the warning in the owner’s manual provided by the defendant nail gun manufacturer that the nail gun should be disconnected from the air compressor when not in use, which warning was also included on the nail gun packaging. (Id. at p. 514.) Thus, the only basis for the plaintiffs’ punitive damages claim in Richetta was that the defendant “had notice of injuries resulting from its nail guns’ contact trip trigger design, yet [defendant did not redesign its nail guns to include a safety switch.” (Ibid.)

In contrast, plaintiffs neither read the subject warning on the PWC console before they boarded the watercraft nor, more importantly, could they have read it because Kohl was already sitting in the operator’s seat and was blocking their view of the only warning on the subject PWC. Richetta is therefore analytically inapposite to the present case.

BRP also cites to Heston v. Taser Internat., Inc. (9th Cir. 2011) 431 Fed. Appx. 586, 589 (Heston) for the same proposition, to wit: when a manufacturer warns of a specific risk of harm and how to prevent it, the requisite intent to establish punitive damages allegedly is lacking as a matter of law. We note that pursuant to United States Circuit Rules (9th Cir.), rule 36-3, the Ninth Circuit Court of Appeals expressly stated that Heston was “not appropriate for publication and is not precedent.” (431 Fed. Appx. at p. 587, fn. *,) In any event, the jury in Heston expressly found the manufacturer of the electroshock weapon used on the victim did not know that prolonged deployment of the weapon could cause cardiac arrest, which finding, according to the Ninth Circuit, demonstrated as a matter of law that the defendant manufacturer did not engage in “ ‘willful or wanton’ conduct.” (Id. at p. 589.)

In contrast, there is no similar finding by a jury that BRP did not actually know beforehand of the risk of the orifice injury that plaintiffs suffered from the foreseeable use of its product. To the contrary, Le Blanc testified BRP knew by the late 1990’s that passengers were sustaining orifice injuries when they fell off the back of a PWC on acceleration, and BRP knew those injuries could, in his words, be “severe.” Heston, like Richetta, is thus inapposite to the instant case.

Another case cited by BRP for the same proposition is Dudley v. Bungee Internat. Manufacturing Corp. (4th Cir., Jan. 31, 1996, No. 95-1204) 1996 U.S.App. Lexis 1267 (Dudley), a per curiam decision that appears in the Table of Decisions Without Reported Opinions pursuant to local rule 32.1 of the United States Court of Appeals for the Fourth Circuit. Under that local rule, “Citation of this Court’s unpublished dispositions issued prior to January 1, 2007, ... is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.”

However, even considering the merits of Dudley, we still conclude it does not support BRP’s position. There, the plaintiff was struck in the eye by a “bungee cord” manufactured by the defendant. The packaging of the bungee cord warned that if the cord was stretched more than 75 percent of its “ ‘stretchable length,’ ” the “ ‘[s]tress on anchor points is increased many times as the cord approaches its maximum stretch limit, possibly resulting in failure of either fastener and dangerous rebound.’ ” (Dudley, supra, 1996 U.S.App. Lexis 1267 at p. *10.) Because it was undisputed that the plaintiff stretched the cord over 75 percent of its stretchable length, the Dudley court applied Virginia law, found the defendant exhibited “some care” for the safety of the plaintiff and therefore reversed the award of punitive damages based on a failure to warn theory. (Ibid.)

Unlike the situation in Dudley, where there was no evidence the warning placed on the cord’s bag was inadequate or was not seen by the plaintiff, here the jury found the subject warning on the PWC was inadequate. What’s more, the record shows plaintiffs did not see, nor could they have seen, the subject warning. For these reasons, we conclude Dudley does not inform our view in the present case.

BRP also relies on Richards v. Michelin Tire Corp. (11th Cir. 1994) 21 F.3d 1048 (Richards). There, the plaintiff attempted to put a 16-inch tire on a tire rim that legibly provided its size was 16.5 inches. (Id. at p. 1051.) Because of the danger of mismatches (i.e., overinflation of a 16-inch tire on a 16.5-inch rim), the defendant tire manufacturer, at the urging of a car manufacturer, had previously added the following warning on its tires’ sidewalls: “ ‘Mount only on approved 16-inch rims.’ ” (Id. at p. 1051.) When the plaintiff was unable to mount the 16-inch tire on the 16.5-inch rim, he and a coworker inserted a tube inside the tire, despite the “ ‘tubeless’ ” notation on the tire itself and despite three statements on the inner tube that it was “ ‘Not For Use in Radial Tires.’ ” (Ibid.) The plaintiff then inflated the tire 10 pounds over its maximum capacity. About 10 seconds later, the tire exploded, permanently injuring the plaintiff. (Id. at p. 1052.) Applying Alabama law, the United States Court of Appeals for the Eleventh Circuit reversed the plaintiff’s punitive damages award.

Unlike the plaintiff in Richards, here there is no evidence that plaintiffs misused the product or otherwise ignored multiple proper and effective warnings given by the defendant manufacturer that, if read and followed, would have averted their injuries. We conclude Richards is, like the others (including in fn. 23 of BRP’s opening brief), is inapposite and offers no guidance on the issue before us arising under maritime law.

Finally, BRP contends that the punitive damages awards must be reversed because the district court in connection with the LOLA proceeding had previously adjudged Adamson and Kohl as the parties responsible for plaintiffs’ injuries and because Adamson testified he had read the warning label on the console of the subject PWC and understood from that warning that one of the possible risks of harm was the type of injuries sustained by Haley and Jessica.

First, we note the jury was instructed Adamson and Kohl were “negligent and their negligence was a substantial factor in causing harm” to Haley and Jessica. There is nothing in this instruction suggesting Adamson and Kohl were negligent solely because they allegedly disregarded BRP’s safety warning regarding the potential of orifice injuries.

Second, even if Adamson and Kohl were negligent because they failed to warn plaintiffs of orifice injuries and the need to wear protective clothing, we would still conclude that such a finding does not ipso facto mean that BRP as a matter of law could not have engaged in conduct supporting the imposition of punitive damages. As summarized ante, we conclude there is sufficient evidence in the record of conduct by BRP for this issue to have been submitted to the jury.

As is evident from our discussion, whether a defendant manufacturer engages in reckless or callous conduct to support imposition of punitive damages under federal maritime law is to be determined by the facts and circumstances of each case. As is further evident from our discussion, we conclude that, on this record, plaintiffs proffered sufficient evidence for this issue to go to the jury, despite the existence of other evidence, including evidence presented by BRP that may have supported a contrary finding by the jury. (See Cahill, supra, 194 Cal.App.4th at pp. 958-959; Rufo, supra, 86 Cal.App.4th at p. 622.)

C. Limitation of Punitive Damages Awarded Linder Federal Maritime Law

BRP alternatively contends that under maritime common law the amount of punitive damages awarded each plaintiff can be no greater than the amount of each of their compensatory damages awards. BRP relies on a single case to support its contention, Exxon, supra, 554 U.S. 471. There, in a five-to-three decision, the United States Supreme Court reduced a punitive damages award arising from the Exxon Valdez oil spill in Alaska by applying a one-to-one ratio of punitive to compensatory damages. (Id. at p. 515.)

1. Exxon

In Exxon, the supertanker Exxon Valdez ran aground, spilling millions of gallons of crude oil in Prince William Sound. Before the accident, the captain of the supertanker drank “at least five double vodkas in the waterfront bars” before he left port. (Exxon, supra, 554 U.S. at p. 477.) The captain previously had completed a 28-day alcohol treatment program while employed by the defendant but had dropped out of a prescribed followup program and had quit attending meetings to help with his sobriety. After the captain was released from the treatment program, “ ‘he drank in bars, parking lots, apartments, airports, airplanes, restaurants, hotels, at various ports, and aboard Exxon tankers.’ ” (Id. at pp. 476-477.) The captain also drank with Exxon officials, who were thus aware of his relapse. (Id. at p. 477.) Eleven hours after the spill, the captain’s blood-alcohol level was 0.061, which, according to experts, equated to a blood-alcohol level of around 0.241, or three times the legal limit for driving in most states, at the time of the accident. (Id. at pp. 478—479.)

The defendant in Exxon spent around $2.1 billion in cleanup efforts and pleaded guilty to violations of various federal laws, including the Federal Water Pollution Control Act (commonly and hereafter referred to as the Clean Water Act) (33 U.S.C. §§ 1311(a), 1319(c)(1)). It also paid $25 million in fines and $100 million in restitution and settled state and federal claims for environmental damage, with payments exceeding $1 billion. (Exxon, supra, 554 U.S. at pp. 476, 479.) The remaining civil cases were then consolidated and the plaintiffs seeking compensatory damages were divided into three classes: commercial fishermen, Native Alaskans and landowners. In addition, at the request of the defendant, the court certified a class of plaintiffs seeking punitive damages, which number exceeded 32,000. (Id. at p. 479.)

The defendant stipulated to its negligence for the disaster and its liability for compensatory damages. The district court thus tried the case in three phases: “Phase I considered Exxon and [the captain’s] recklessness and thus their potential for punitive liability; Phase II set compensatory damages for commercial fishermen and Native Alaskans; and Phase III determined the amount of punitive damages for which [the captain] and Exxon were each liable.” (Exxon, supra, 554 U.S. at pp 479—480.)

“In Phase I, the jury heard extensive testimony about [the captain’s] alcoholism and his conduct on the night of the spill, as well as conflicting testimony about Exxon officials’ knowledge of [the captain’s] backslide.” (Exxon, supra, 554 U.S. at p. 480.) “In Phase II, the jury awarded $287 million in compensatory damages to the commercial fishermen.” (Id. at p. 480.) “In Phase III, the jury heard about Exxon’s management’s acts and omissions arguably relevant to the spill. [Citation.]” (Id. at p. 481.) The jury subsequently awarded $5,000 in punitive damages against the captain and $5 billion against Exxon.

With respect to the award of punitive damages, the Court of Appeals for the Ninth Circuit “remanded twice for adjustments in light of this Court’s due process cases before ultimately itself remitting the award to $2.5 billion. [Citations.]” (Exxon, supra, 554 U.S. at p. 481.) The Supreme Court granted certiorari to consider, among other issues, whether the “punitive damages awarded against Exxon . . . were excessive as a matter of maritime common law.” (Ibid.)

The Exxon court discussed the size of punitive damages awards “when wrongdoing is hard to detect (increasing chances of getting away with it), [citation], or when the value of injury and the corresponding compensatory award are small (providing low incentives to sue) [citations].” (Exxon, supra, 554 U.S. at p. 494.) The court noted that it previously reviewed punitive damages awards at the constitutional level, where it “announced due process standards that every award must pass,” but that the case before it involving the Exxon Valdez was different because it was examining the “verdict in the exercise of federal maritime common law authority, which precedes and should obviate any application of the constitutional standard” in the due process cases that, in any event, were subject to and based on state law. (Id. at pp. 501-502, citing, among other authorities, State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408 [155 L.Ed.2d 585, 123 S.Ct. 1513] (State Farm).)

Out of concern about the “unpredictability of high punitive awards” and the “implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another” (Exxon, supra, 554 U.S. at p. 502), the court considered various approaches to judicial review of punitive awards under maritime law. It rejected what it called “verbal formulations” of judicial review criteria used in some states that are “superimposed on general jury instructions” as a means to prevent “unpredictable outliers.” (Id. at p. 504.) It instead adopted what it referred to as “quantified limits” as a means of “eliminating unpredictable outlying punitive awards.” (Id. at p. 506.) Rather than applying a “hard dollar cap on punitive damages,” as do some states, the court determined the best alternative was “pegging punitive to compensatory damages using a ratio or maximum multiple,” which it found was a model used by many states. (Ibid.)

The court next turned to the issue of what ratios it should use as a “reasonable limitation[] suited for application to this case. While a slim majority of the States with a ratio have adopted 3:1, others see fit to apply a lower one, [citations], and a few have gone higher [than 3:1] [citation]. Judgments may differ about the weight to be given to the slight majority of 3:1 States, but one feature of the 3:1 schemes dissuades us from selecting it here. With a few statutory exceptions, generally for intentional infliction of physical injury or other harm, [citations], the States with 3:1 ratios apply them across the board (as do other States using different fixed multipliers). That is, the upper limit is not directed to cases like this one, where the tortious action was worse than negligent but less than malicious, [fn. omitted] exposing the tortfeasor to certain regulatory sanctions and inevitable damages actions;[ ] the 3:1 ratio in these States also applies to awards in quite different cases involving some of the most egregious conduct, including malicious behavior and dangerous activity carried on for the purpose of increasing a tortfeasor’s financial gain.[] We confront, instead, a case of reckless action, profitless to the tortfeasor, resulting in substantial recovery for substantial injury. Thus, a legislative judgment that 3:1 is a reasonable limit overall is not a judgment that 3:1 is a reasonable limit in this particular type of case.” (Exxon, supra, 554 U.S. at pp. 509-511.)

The court in Exxon also rejected a two-to-one ratio that it found was adopted by federal statutes, including in patent and trademark cases and in private antitrust actions. With regard to the latter, the Court noted that “Congress devised the treble damages remedy for private antitrust actions with an eye to supplementing official enforcement by inducing private litigation, which might otherwise have been too rare if nothing but compensatory damages were available at the end of the day. [Citation.] That concern has no traction here, in this case of staggering damage inevitably provoking governmental enforcers to indict and any number of private parties to sue.” (Exxon, supra, 554 U.S. at p. 511.)

The court next looked to several studies where reasonableness of punitive awards were considered in many cases. “These studies cover cases of the most as well as the least blameworthy conduct triggering punitive liability, from malice and avarice, down to recklessness, and even gross negligence in some jurisdictions. The data put the median ratio for the entire gamut of circumstances at less than 1:1, [citation], meaning tha