Full opinion text
ORDER DONALD E. O’BRIEN, Chief Judge. Defendant Deere & Company’s (Deere) motion for judgment notwithstanding the verdict (jnov) and, in the alternative, motion for a new trial, bring this matter before the court. After careful consideration of the written and oral arguments of the parties, as well as extensive review of the transcript, trial notes, and exhaustive independent research, the court denies the motions. The court does however, find the award of $50,000,000 in punitive damages to be excessive and that the award should be remitted to $28,000,000. FACTS This products liability action was tried to a jury during a two-week period in November, 1990 and concluded in a jury verdict in favor of the plaintiff for $650,000 for actual damages. In doing so the jury found the plaintiff to be 40% at fault for his injuries and defendant Deere & Co. 60% at fault. This resulted in a net recovery for the plaintiff of $390,000. Special Interrogatories were submitted to the jury on the issue of awarding punitive damages. The jury found that Deere’s conduct constituted willful and wanton disregard for the rights or safety of another and awarded punitive damages in the amount of $50,000,000. An additional special interrogatory was submitted to the jury pursuant to Iowa Code § 668A which asked if the conduct of Deere & Co. was directed specifically at Clair Burke. The jury answered that it was not. Following the trial Deere filed these motions for a new trial and for judgment notwithstanding the verdict. This is the second case this court has had before it involving the John Deere Titan series combine. The first case of Christopherson v. Deere, Civil No. 86-67-W, 1990 WL 324300 (S.D.Iowa), was tried to a jury during a two-week period in the month of August, 1989. The Christopherson case was tried by the same plaintiffs and defendant’s counsel. That matter concluded in a plaintiff’s verdict which has subsequently been affirmed by the Eighth Circuit Court of Appeals in Christopherson v. Deere, 941 F.2d 692 (8th Cir.1991). In the Christopherson case, as in the case at hand, the parties before trial entered into an extensive stipulation of undisputed facts. The court finds a recitation of this stipulation most useful when reviewing the motions now before the court, and now sets out portions of said stipulation. Commencing in October of 1978, Deere & Company introduced into the market its Titan Series Combines designed with a closed unloading system which functioned, basically, as follows: Two cross augers in the bottom of the grain tank would push the grain into a sump, with an angled floor, whereby the grain would flow down to a vertical auger which would carry the grain straight up, to a horizontal auger which would, in turn, convey the crop out to a waiting storage cart or truck. At the base of the vertical auger, there was a clean-out door approximately 5 inches by 6 inches in size which was accessible from the ground for use in cleaning the grain residue out of the grain tank sump and vertical unloading auger. When seated in the operator’s seat in the combine cab, the operator cannot see the lower clean-out door for the vertical auger. This configuration was substantially different from Deere’s old series, the New Generation combines, which had no vertical auger or sump, nor a horizontal auger. The New Generation combines had a discharge auger which attached at the bottom left center of the grain tank. When in position for discharge, it angled out and up at an approximate 45-degree angle. The angled discharge auger was hinged where it attached to the grain tank and when folded back against the side of the combine for transport, the circular hole, where grain feeds from the tank into this auger, was exposed, also exposing one of the cross augers in the tank. In August of 1979, Deere & Company was notified that an individual had suffered a hand injury while in the process of attempting to clean out a clogged vertical unloading auger at the lower clean-out door. In this instance, the individual reportedly had left the power to the auger engaged, but due to crop residue which had hardened in the vertical unloading auger, the auger was not turning. Upon cleaning of a portion of the crop residue, the auger began to turn slowly, resulting in injury to the individual’s hand. The factory which produced all of the Titan combines was Deere & Company’s John Deere Harvester Works in East Mo-line, Illinois. There was at the John Deere Harvester Works a Product Safety Committee whose function, among other things, was and is to review accidents reported to the company involving equipment manufactured at the John Deere Harvester Works, including combines. The Product Safety Committee consists of employees of Deere & Company, including, but not limited to, the Product Safety Coordinator, the Factory Service Manager, the Division Engineer, New Combine Design, the Supervisor of Service Publications and Technical Writings, the Manager of Test and Evaluation Engineering and the Manager of Product Reliability, or their alternates. The Safety Committee reviewed the information relating to the accident it had been notified of in September of 1979. The committee recommended that the Operator’s Manual for Titan Combines be reviewed, as well as the caution decal mounted on the side of the combine, approximately 3 feet to the rear of the lower clean-out door of the vertical auger. On February 29,1980, Deere & Company was notified of an accident involving David Johnson. It was reported that Mr. Johnson was removing crop residue from the vertical auger shaft at the lower clean-out door when his brother, who was in the operator’s cab, started the unloading auger, resulting in the amputation of Mr. Johnson’s left arm. This accident was discussed at the Product Safety Committee meeting on April 2, 1980 and the committee recommended that the Design Division review the design for a possible way to minimize the hazard and that a decal be adopted to be placed above the clean-out door as an interim measure. On September 26, 1980, Deere was notified that a Mr. Mitchell suffered an injury to his right arm while cleaning crop residue from the grain tank sump of a Titan Combine when another person turned on the vertical auger while Mr. Mitchell had his hand in the lower clean-out door for the vertical auger. On November 5, 1980, the Product Safety Committee approved a warning decal to be placed above the lower clean-out door of the vertical auger. The decal was to be placed on machines being manufactured beginning in January of 1981. On December 11, 1980, Deere & Company was notified of an accident involving Mr. Roger Herring. It was reported to Deere that Mr. Herring had been involved in cleaning out crop residue from the grain tank sump and vertical auger at the lower clean-out door of the vertical auger. He reportedly had his hand through the lower clean-out door when another person engaged the vertical auger, causing an injury to Mr. Herring’s right hand and arm. On January 5, 1981, a new warning decal was made standard equipment and placed on all combines produced after that date, above the lower clean-out door of the vertical auger. On January 14, 1981, the Product Safety Committee at the John Deere Harvester Works agreed that the new decal should be mailed to all customers who had purchased, a Titan Series Combine prior to January 5, 1981. On February 25, 1981 the Product Safety Committee observed a proposed design change in the lower clean-out door of the vertical unloading auger. This proposed change consisted of a clean-out door located in the floor of the grain tank sump, forward of the vertical auger. The clean-out door at the rear of the vertical auger tube was closed down to approximately one inch high. The committee agreed that the proposed design should be tested. In March of 1981 the new decal was adopted as Modification Program No. H104. On Approximately April 12, 1981 the new warning decal and a letter accompanying it were sent to ail customers who had purchased Titan Series Combines prior to January 1981, as well as to all dealers who had combines purchased for their inventory on their lots. On July 9,1981, it was reported to Deere & Company that on or about June 18, 1981, Mr. Leon Karst had suffered a hand injury in the course of cleaning out the grain tank sump through the lower clean-out door of the vertical unloading auger. It was reported that someone else had engaged the vertical unloading auger drive while Mr. Karst’s hand was inserted through the door, into the vertical auger and sump area. On October 8, 1981, the proposed design change first presented to the Product Safety Committee in February of 1981 was approved for production, with the addition of a trimming of the auger flighting on the vertical auger at the lower end. This change (Deere Engineering Decision # 89031H) was to occur on the production line effective March 1, 1982. Since, with the new design, there would be two clean-out doors, the narrow door at the rear of auger tube and the large door in the floor of sump leading to the vertical unloading auger, the decal issued in January of 1981 was changed to reflect that there were two doors instead of a single door. The decision to adopt the new design and change the decal were given final approval by the Safety Committee on December 2, 1981, to be incorporated into machines manufactured commencing March 1, 1982. On February 12, 1982, Deere & Company was notified that in October 1981, Mr. Leo Cole was injured while cleaning his Titan Series Combine out with the engine running. It was reported that he put his hand into the vertical auger housing to clean out wet soybeans, through the lower clean-out door of the vertical auger, when the operator of the combine engaged the auger, causing injury to Mr. Cole’s right hand. Commencing on March 1, 1982, the production line at the John Deere Harvester Works began assembling all future combines with the revised design for the lower clean-out door of the vertical auger and grain tank sump. On or about August 2, 1982, Deere & Company was notified of an accident which reportedly occurred on July 5, 1982, involving one Albert Ferens. Reportedly, Mr. Ferens was cleaning out the grain tank sump through the vertical auger’s lower clean-out door when a helper engaged the auger drive, resulting in injury to Mr. Fer-ens’ right arm. Mr. Ferens’ combine had the factory updated decal, which had been used since January of 1981, above the clean-out door. In the period from September of 1982 until March of 1983, Deere & Company was notified of six additional accidents at the lower clean-out door of the vertical unloading auger on Titan Series Combines where the persons reportedly injured had each been reaching through the lower clean-out door of the vertical auger, with the combine’s engine running, cleaning out crop residue, when another person then engaged the vertical auger, causing injuries to the hands or arms of the persons so involved, as follows: Injured Person Accident Date Date of Notice to Deere Hanna 10/25/82 11/01/82 Chaney 06/29/82 09/14/82 Marple 11/01/82 01/10/83 Boucher 08/11/82 01/17/83 Wheeler 09/14/81 09/20/82 Melton 10/12/82 03/07/83 While Deere & Company was not notified of the Boucher, Marple and Melton accidents until 1983, all of the six accidents, with the exception of Mr. Wheeler’s accident, had occurred in the period from July through November 1982. Mr. Wheeler’s accident occurred in September 1981, but Deere & Company was not notified of it until September 20, 1982. The combines involved in the accidents involving Mr. Hanna, Mr. Boucher, Mr. Marple, and Mr. Melton all had the factory decal, placed above the clean-out door, issued in January of 1981, installed on the combine during production. Mr. Melton claimed that the decal above the clean-out door had been obscured by mud at the time of his accident. The combines involved in the Wheeler and Chaney accidents did not have such a decal above the lower clean-out door. Two accidents at the lower clean-out door occurred during the calendar year 1983. In each case, the person injured had his hand extended into the lower clean-out door of the vertical auger in the process of cleaning out crop residue from the grain tank sump when a second person engaged the auger, causing injury to the arm or hand. The two parties so injured were Timothy Giesbrecht, whose accident reportedly occurred on August 29, 1983 and was reported to Deere on September 16,1983, and Mr. Walter Lockley, who was reportedly involved in his accident on October 10, 1983 though Deere & Company had no knowledge of his accident until March 21, 1984. Mr. Giesbrecht’s combine, though it had been built in 1980 and did not have the decal above the clean-out door in production, did have a decal above the clean-out door at the time of his accident. Mr. Lock-ley’s combine reportedly did not have the decal above the clean-out door, having been manufactured in 1979. On May 9,1984, the John Deere Harvester Works Product Safety Committee reviewed the Lockley and Giesbrecht accidents and agreed that the revised design which had been installed in the factory on machines manufactured since March of 1982, be field installed on all combines produced before March 1982 (Product Improvement Program H401). On June 22, 1984, Deere & Company announced to all of its dealers and by letters to customers that the Titan Series Combines built before March 1, 1982 should be modified and the revised design installed under Deere’s Modification H401. The revision of the pre-March 1982 combines was to be at Deere’s expense. From July 1984 through November 1984, Deere & Company was notified of eight additional accidents. The persons injured were Messrs. Hillman, Stotler, Gannon, Christopherson, Ball, Obermeyer, Burke and Pierce. Of these eight accidents, six had occurred in the period from September through November 1984, while two, Mr. Stotler’s accident and Mr. Hillman’s accident, had occurred previously. Mr. Hill-man’s accident reportedly took place in July of 1982 and was reported to Deere on July 23, 1984. Mr. Stotler’s accident took place in September of 1981 and was reported to Deere on October 29, 1984. Deere & Company was advised of one further accident on June 17, 1985 involving a Mr. Muffett which was reported to have occurred on or about November 10, 1984, and in 1986, of a final accident involving Johnny Adams, which accident had occurred on October 30, 1980, though Deere & Company was not advised of it until November 30,1986. None of these last ten accidents occurred on a combine which had the modifications installed, to Deere’s knowledge, except Mr. Muffett’s combine, which, although it had not had a decal installed above the clean-out door in production, having been built prior to 1981, reportedly did have a decal placed at the clean-out door some time thereafter which, reportedly, had been painted over at the time of his accident. Each accident involved a person who was reaching through the lower clean-out door of the vertical auger, of the original design, when a second person engaged the auger drive, resulting in the auger contacting and injuring the arm or hand of each party. Approximately 37,177 combines were built prior to March 1, 1982 with the original design that were, therefore, eligible to be revised with the updated design. As set out in the stipulation, 26 people had been injured in substantially similar accidents at the same lower clean-out door. DISCUSSION JUDGMENT NOTWITHSTANDING THE VERDICT. Deere moves for judgment notwithstanding the verdict on the following grounds of alleged error: (1) The judgment for punitive damages is grossly excessive, unconscionable and shocks the conscience, and is a result of passion and prejudice. (2) The judgment for punitive damages violates the following clauses of the Constitution of the United States, the Fifth, Eighth and Fourteenth Amendments, and the Constitution of the State of Iowa: (a) The due process clauses of the Fifth and Fourteenth Amendments; (b) The equal protection clause of the Fourteenth Amendment to the United States Constitution; (c) The excessive fines and cruel and unusual punishment clauses of the Eighth Amendment to the United States Constitution and Article I, Section 17 of the Iowa Constitution; (d) The double jeopardy and self incrimination clauses of the Fifth Amendment to the United States Constitution and the double jeopardy clause of Article I, Section 12 of the Iowa Constitution; (e) The ex post facto clause of Article I, Section 10 of the United States Constitution and Article I, Section 21 of the Iowa Constitution. (3) The court erred in submitting the issue of punitive damages to the jury when there was insufficient admissible evidence of any willful and wanton conduct by Deere. (4) The court erred in submitting the issue of failure to warn where the danger was open and obvious and plaintiff had actual knowledge of the danger, and in failing to direct a verdict on the basis that as a matter of law any lack of warnings was not the proximate cause of plaintiffs injury. (5) The court erred in failing to direct a verdict on strict liability for defective design for the reason that the product was not unreasonably dangerous as a matter of law, and that any unreasonably dangerous condition was not the proximate cause of plaintiffs injury. (6) The court erred in permitting the jury to impose liability on Deere for post-sale conduct concerning warnings and product modification programs in the absence of any legal duty to recall or modify products previously sold. (7) Even if a duty to make post-sale modifications were found, notification of the owner and dealer of the modification program and providing the dealer with the parts necessary for modification fulfilled any duty to recall or make post-sale modifications as a matter of law. (8) The court erred in permitting live and deposition testimony of other injured persons and owners. (9) The verdict was against the weight of the evidence. MOTION FOR NEW TRIAL. Deere moves for a new trial on the following grounds of alleged error: (1) The judgment for punitive damages is grossly excessive, unconscionable and shocks the conscience, and is a result of passion and prejudice. (2) The judgment for punitive damages violates the following clauses of the Constitution of the United States: the Fifth, Eighth and Fourteenth Amendments, and the Constitution of the State of Iowa: (a) The due process clauses of the Fifth and Fourteenth Amendments; (b) The equal protection clause of the Fourteenth Amendment to the United States Constitution; (c) The excessive fines and cruel and unusual punishment clauses of the Eighth Amendment to the United States Constitution and Article I, Section 17 of the Iowa Constitution; (d) The double jeopardy and self incrimination clauses of the Fifth Amendment to the United States Constitution and the double jeopardy clause of Article I, Section 12 of the Iowa Constitution; (e) The ex post facto clause of Article I, Section 10 of the United States Constitution and Article I, Section 21 of the Iowa Constitution. (3) The court erred in submitting the issue of punitive damages to the jury when there was insufficient admissible evidence of any willful and wanton conduct by Deere. (4) The court’s Jury Instructions Nos. 34-36 and verdict form on punitive damages are in error based on the following grounds: (a) The instructions failed to properly instruct on the required standard of proof; (b) The instructions failed to adequately instruct that the jury may, but need not, award punitive damages; (c) The instructions omit the requirement that the amount of punitive damages awarded must bear a reasonable relationship to plaintiff’s compensatory damages; (d) The instructions fail to give the jury adequate guidance regarding the factors to be considered in determining the proper amount of punitive damages; (e) The instructions failed to instruct the jury that they could not consider evidence of post-sale or post-accident conduct of Deere on the issue of punitive damages; (f) Instruction No. 36 is inconsistent with Instruction No. 34, is one-sided, argumentative, and incorrectly states the applicable law in omitting reference to the requirement that the conduct must be willful and wanton, in referring to and failing to define “inherently dangerous.” (g) The verdict form improperly advised the jury of the effect of its answer to special interrogatory No. 3 on punitive damages and incorrectly advised the jury if they answered “no,” a portion of the punitive damages award would be paid into a civil trust fund administered by the court. (5) The court erred in admitting post-sale and post-accident evidence of Deere’s conduct on the issue of punitive damages when such evidence was not relevant to Deere’s state of mind or motive at the time of the acts upon which liability to plaintiff is based. (6) The court erred in permitting the jury to impose liability on Deere for post-sale conduct concerning warnings and product modification programs in the absence of any legal duty to recall or modify products previously sold. (7) The court erred in failing to instruct on Deere’s requested specifications of plaintiff’s negligence, especially where the marshalling instruction told the jury these specifications were explained in other instructions, but were not, and in failing to instruct the jury on plaintiff’s duty to exercise reasonable care for his own safety. (8) The court erred in permitting irrelevant and prejudicial evidence of post-accident conduct of independent dealerships, and permitting the jury to impose liability on Deere for acts or omissions of these dealerships in the absence of any proof of an agency relationship sufficient to establish vicarious liability and without any instruction as to what must be established to prove an agency relationship or vicarious liability for punitive conduct. (9) The court erred in its instructions on key elements of plaintiff’s sole theory of strict liability, specifically, the definition of unreasonably dangerous, the duty to warn, and the failure to instruct as to the effect of open and obvious dangers. (10) The court erred in submitting the issue of failure to warn where the danger was open and obvious and plaintiff had actual knowledge of the danger. (11) The court erred in permitting irrelevant, improper, and prejudicial lay opinion testimony. (12) The court erred in permitting irrelevant, improper, and prejudicial expert opinion testimony, including testimony on matters which are not the proper subject of expert testimony. (13) The court erred in admitting deposition and trial testimony of witnesses from other lawsuits, who did not testify in the present case, who were not unavailable within the meaning of Federal Rule of Evidence 804. (14) The court erred in receiving into evidence a selected excerpt from Deere safety policy statement. (15) The court erred by permitting reference by plaintiffs counsel to punitive damages and Deere’s net worth in opening statement, and in generally permitting comment upon the evidence of Deere’s post-sale conduct prior to the time the court determined plaintiff had established a sufficiently submissible pri-ma facie case as required by Iowa Code § 668A.1(3), and in permitting improper closing argument including a “golden rule” argument. (16) The court erred in failing to instruct the jury that the condition of the combine and Deere’s liability was to be judged solely as of the time of the initial sale of the combine in 1980. (17) The court erred in permitting live and deposition testimony of the other injured persons and owners. (18) The court erred in submitting future medical expenses as an element of plaintiff’s damages where there was insufficient evidence to support submission of them. (19) The court erred in giving an erroneous, prejudicial and argumentative jury instruction on pain and suffering which overemphasized this element of damages. (20) The verdict is against the weight of the evidence. Federal Rule of Civil Procedure 59, in pertinent part provides that: A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. This court, in reviewing a motion for new trial, is not required to view the evidence in the light most favorable to the non-movant; rather, it may weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict. Ouachita National Bank v. Tosco Corp., 686 F.2d 1291 (8th Cir.1982). The authority to grant a new trial is confided almost entirely to the exercise of discretion on the part of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980). A motion for new trial should be granted when the moving party has met his burden of showing either that prejudicial error has been committed or substantial justice has not been achieved. Midcontinent Broadcasting Co. v. North Central Airlines, Inc., 471 F.2d 357, 359 (8th Cir.1973); Marcoux v. Midstate Livestock, Inc., 429 F.Supp. 155 (N.D.Iowa 1977). The court will honor the requests of counsel and address each of the specific points of error. (June 27, 1991, Hearing Tr. at 159-60) I. Judgment Notwithstanding the Verdict. The test for evaluating a motion for j.n.o.v. in this circuit is as follows: Both the trial court and this court must (a) consider the evidence in the light most favorable to the prevailing party, (b) assume that the jury resolved all conflicts of evidence in favor of that party, (c) assume as true all facts which that party’s evidence tended to prove, (d) give that party the benefit of all favorable inferences which may reasonably be drawn from proved facts, and (e) deny the motion if in light of the above reasonable jurors could differ as to the conclusions that could be drawn from the evidence. McGee v. South Pemiscot School Dist. RV, 712 F.2d 339, 343 (8th Cir.1983) (citations omitted). (1) The judgment for punitive damages is grossly excessive, unconscionable and shocks the conscience, and is a result of passion and prejudice. Although state law principles govern in establishing whether punitive damages are available for a state law claim, Kerr v. First Commodity Corp., 735 F.2d 281, 289 (8th Cir.1984), the proper role of the federal courts in reviewing the size of jury verdicts is a matter of federal law. Donovan v. Penn Shipping Co., Inc., 429 U.S. 648, 649, 97 S.Ct. 835, 836-37, 51 L.Ed.2d 112 (1977); American Business Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135 (8th Cir.1986). The United States Supreme Court stated in Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 279, 109 S.Ct. 2909, 2922, 106 L.Ed.2d 219 (1989), the standard for review of a punitive damage award. In reviewing an award of punitive damages, the role of the District Courts is to determine whether the jury’s verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered. The Court of Appeals should then review the District Court’s determination under an abuse of discretion standard. Although petitioners and their amici would like us to craft some common-law standard of excessiveness that relies on notions of proportionality between punitive and compensatory damages, or makes reference to statutory penalties for similar conduct, these are matters of state, and not federal, common law. Adopting a rule along the lines petitioners suggests would require us to ignore the distinction between the state law and federal law issues. For obvious reasons we decline the invitation. The primary focus when reviewing a punitive damage award in Iowa is the relationship between the punitive damage award and the wrongful conduct of the offending party. Ryan v. Arneson, 422 N.W.2d 491, 496 (Iowa 1988). To determine if the award is a result of prejudice and passion, the trial judge should “consider whether the punitive damages award is reasonably related to the malicious conduct of the defendant which resulted in actual injury or damage to the plaintiff.” Id. at 496. Exemplary [punitive] damages are in no way intended to be compensatory. There is no set mathematical ratio between actual and exemplary damages. Exemplary damages are intended to punish the defendant and deter others from similar wrongdoing. To be effective in this purpose, the exemplary damages awarded must be relatively large. Northrup v. Miles Homes, Inc. of Iowa, 204 N.W.2d 850 (Iowa 1973). Punitive damages exist to punish the defendant and to deter the offending party and like-minded individuals from committing similar acts. Ryan v. Arneson, 422 N.W.2d 491, 496 (Iowa 1988). Although Iowa cases have discussed a relationship between actual and punitive damages, the Iowa Supreme Court has expressly rejected the use of a mathematical ratio in examining punitive damages as they relate to actual damages. Furthermore, Iowa cases have stated that legal precedent is of limited value in evaluating the damage award of a specific case. Ryan v. Arneson, 422 N.W.2d 491, 496 (Iowa 1988). In Hale v. Firestone Tire & Rubber Company, 820 F.2d 928, 936 n. 1 (8th Cir.1987), the Court of Appeals noted that: Missouri has abolished the use of remit-titur noting that the practice is fraught with confusion and inconsistencies, Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99, 110 (Mo.1985). It has been challenged as an invasion of a party’s right to weigh the evidence. Id. The Missouri Supreme Court, therefore, concluded that given the broad discretion of the trial court to order a new trial where the verdict is against the weight of the evidence, remit-titur practice is unnecessary and wasteful. Id. This Court is not bound by the Firestone decision since remittitur is largely a procedural issue, and question of whether to grant a new trial is a federal procedural question to be decided by reference to federal law. Ferren v. Richards Mfg. Co., 733 F.2d 526, 528 (8th Cir.1984). The Eighth Circuit Court of Appeals has stated that the general rule is that where a punitive damage award is the result of passion and prejudice, a new trial is required and that a remittitur is not an appropriate remedy. See, Hale v. Firestone Tire & Rubber Company, 820 F.2d 928, 936 (8th Cir.1987). Accordingly, this court must answer the question, based upon the record as a whole, was the punitive damage award a result of passion and prejudice? After reviewing the transcript and trial notes, this court concludes that it was not. Upon answering this question, the next logical step is to determine if the punitive damage award was excessive. In order to review this issue the court must keep in mind the public policy behind punitive damages: to obtain the attention of the defendant and to deter similar willful and wanton conduct. With this policy factor in mind, the court finds that the $50,000,000 punitive damage award against a company with a net worth of $2,780,330,- - 000 more than accomplished this purpose. It is clear that the jury wanted to send a message to Deere that this type of conduct will not be tolerated in Iowa. The court in addition finds that this same message can j: be delivered to Deere with the same force j and effect if it is reduced to $28,000,000. j In making this reduction, the court is not : finding that the verdict was a result of f passion and prejudice, it is merely finding (that a substantial message can be delivered j, for $22,000,000 less than the jury’s award. ¡The award was excessive. A sum of approximately 1% of Deere’s net worth plus estimated trial expenses is realistic and ap- ¡ propriate under the circumstances. Accordingly, this portion of the motion for judgment notwithstanding the verdict is denied. (2) The judgment for punitive damages violates the following clauses of the Constitution of the United States, the Fifth, Eighth and Fourteenth Amendments, and the Constitution of the State of Iowa: (a) The due process clauses of the Fifth and Fourteenth Amendments; Under Pacific Mutual Life Insurance Co. v. Haslip, — U.S.-, 111 S.Ct. 1032, 1044-45, 113 L.Ed.2d 1 (1991), this court must evaluate both the jury instructions as to the punitive damages award and the adequacy of judicial review of the jury’s award. Robertson Oil Co. Inc. v. Phillips Petroleum Co., 930 F.2d 1342, 1346 (8th Cir.1991). In finding no constitutional violation, the Supreme Court in Haslip, supra, was considering Alabama law, and considered the following factors significant: (1) the jury was instructed that the purpose of punitive damages was to punish the defendant and to deter similar conduct so that its discretion was not unlimited; (2) the Alabama Supreme Court has established post-trial procedures for scrutinizing punitive awards, enumerating certain factors for the trial court to consider in reviewing a verdict for excessiveness; (3) the Alabama Supreme Court also reviews an award by applying “detailed substantive standards” to ensure that the award is reasonable in amount and rational in light of its purpose. Haslip, 111 S.Ct. at 1032, 1044-45. In Haslip, the Supreme Court held the award of punitive damages does not violate due process if it is reasonable in its amount and rational in light of its purpose. This court reviewed the instruction given to the jury regarding punitive damages. The court finds that holding from Haslip enlightening in this area. The United States Supreme Court found: The trial court expressly described for the jury the purpose of punitive damages, namely, “not to compensate the plaintiff for any injury” but “to punish the defendant” and “for the added purpose of protecting the public by [deterring] the defendant and others from doing such wrong in the future.” * * * * * * To be sure, the instructions gave the jury significant discretion in its determination of punitive damages. But that discretion was not unlimited. It was confined to deterrence and retribution, the state policy concerns sought to be advanced. And if punitive damages were to be awarded, the jury “must take into consideration the character and the degree of the wrong as shown by the evidence and necessity of preventing similar wrong.” App. 106. The instructions thus enlightened, we believe, reasonably accommodated Pacific Mutual’s interest in rational decision making and Alabama’s interest in meaningful individualized assessment of appropriate deterrence and retribution. The discretion allowed under Alabama law in determining punitive damages is no greater than that pursued in many familiar areas of the law as for example, deciding “the best interests of the child,” or “reasonable care,” or “due diligence,” or appropriate compensation for pain and suffering or mental anguish. As long as the discretion is exercised within reasonable constraints, due process is satisfied. Haslip, 111 S.Ct. at 1044. (footnote 7 added to inform of the specific language of the instruction) This court’s punitive damage instruction was Instruction No. 34 (Iowa Civil Jury Instruction 210.1), which states as follows: Punitive damages may be awarded if the plaintiff has proven by a preponderance of the evidence the defendant Deere’s conduct constituted a willful and wanton disregard for the rights or safety of another and caused actual damage to the plaintiff. Punitive damages are not intended to compensate for injury but are allowed to punish and discourage the defendant Deere and others like conduct in the future. There is no exact rule to determine the amount of punitive damages, if any, you should award. In fixing the amount of punitive damages, you may consider all the evidence including: 1. The nature of defendant’s conduct. 2. The amount of punitive damages which will punish and discourage like conduct by the defendant in view of its financial condition. 3. The plaintiff’s actual damages. The main difference in the two instructions is that it appears that the instruction given in Haslip was an oral instruction, and this court’s instruction was in written form. Otherwise Instruction No. 34 informs the jury that they “may” award punitive damages; it informs them that punitive damages are not intended to compensate for injury but are allowed to punish and discourage similar conduct. Instruction No. 34 further provided guidance to the jury in that it instructs them that they “may” consider the nature of the defendant’s conduct, the amount they perceive will punish and discourage similar conduct, and that they may take into consideration the plaintiff’s actual damages. After a review of the instruction given in Haslip, and the instruction given here, the court finds that adequate protection was given to Deere’s Due Process rights. In reaching this conclusion the court has considered Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991), a case called to this court’s attention by defense counsel after submission of this matter. The court finds this case distinguishable. As found above, the punitive damage instruction in this case provided as much, if not more, due process protection as the instruction in Haslip. The Fourth Circuit Court of Appeals found that the South Carolina punitive damage instruction as used in Matti-son, failed to meet the Haslip requirements, we agree with their finding. Our instruction meets the Haslip test. The Mattison instruction does not. These cases are distinguishable. Further in Haslip the process required for an Alabama trial court when reviewing an award of punitive damages was spelled out: (a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred; (b) the degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (d) the “financial position” of the defendant; (e) all the costs of litigation; (f) the imposition of criminal sanction on the defendant for its conduct, these to be taken in mitigation; and (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation. Haslip, 111 S.Ct. 1032, 1045. The court will briefly examine the Haslip factors at this time as they are discussed in detail throughout the body of this order. (a) Whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred. The evidence presented at the time of the trial indicated that at least 27 persons had been injured while working on the Titan series combine. Further evidence showed that a true and accurate number of those actually injured on the Titan series may never be known. The court concludes that a punitive damages award of $28,000,000 bears a reasonable relationship to the harm resulting from defendant’s conduct. (b) The degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct. Evidence was presented at trial that Deere first became aware of this danger in August, 1979, upon receiving an accident report of a mechanic at the Evergreen dealership. Over the next several years Deere receive more reports of injuries involving the vertical unloading auger. Deere’s safety committee, upon learning of the Evergreen accident, recommended the placement of a decal on the unloading auger housing. In April, 1981, almost two years after first discussion of the placement of the warning decal, Deere mailed a decal to all combine owners. These letters failed to fully explain the nature of the danger to the combine owners. The evidence at trial was that Deere approved a modification in the design of the clean-out door in the unloading auger and made the change on the production line in March, 1982. At this time Deere had 3,100 combines in the “pipeline”, that is, machines that had been manufactured but not yet sold. These machines did not receive the protective changes at that time. They were ignored. It was not until May, 1984, some 26 months later, that Deere decided to extend the revised design to include all combines in the field that were produced before March, 1982. At that time the H401 retrofit program was introduced. This was the program in which Deere attempted to have all the “old” type lower clean-out doors on the vertical unloading auger area modified. As mentioned, this program started two years and two months after Deere had changed the design on the new combines made at the factory. Evidence presented at trial raised a question for the jury as to whether or not this delay was motivated by a savings to Deere of approximately $2,700,000. The jury’s verdict supports a finding that the jury at least in part found Deere’s delay in making a retrofit package available was due in part to economic motivations. See Exhibit No. 29(f) (cost of H401); Exhibit No. 29(b) (cost of H104). (c) The profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss. As mentioned above, the decision of Deere to change only the production line models of the Titan series combine was shown to save Deere about $2,700,000. The evidence showed that these combines cost anywhere from $50,000 to $80,000 each, depending on the accessories. A delay in selling the 3,100 pipeline machines, for the purpose of modifying them, would surely have cost Deere a great deal of money. The punitive damage award of $28,000,000 is in accord with the desirability of removing the profit from Deere’s bad conduct. (d) The “financial position” of the defendant. As discussed in further detail elsewhere in this order, the court finds that a punitive damage award of $28,000,000 imposed on a company whose net worth is $2,780,330,000 is in line with the public policy behind punitive damage awards. Although an award of $28,000,000 is a sizeable award, it constitutes only 1.007% of Deere’s net worth, (e) All the costs of litigation; (f) The imposition of a criminal sanction on the defendant for its conduct; and (g) The existence of other civil awards against the defendant for the same conduct. In general, cases of this magnitude and age involve substantial legal expenses. This factor has been taken into consideration by the court. This court is not aware of any type of criminal sanctions applicable to this matter. Finally, the court after consultation with counsel is unaware of any other punitive damage award involving this machine and this type of injury. Accordingly, the court does not find that (f) and (g) are significant factors. These factors are sometimes approved to mitigate damages, but as they are not present in this case, such an evaluation of a possible setoff was unnecessary. Deere also has a violation of equal protection claim. (b) The equal protection clause of the Fourteenth Amendment to the United States Constitution; The equal protection claim must fail because Deere has not alleged that it was treated differently because of race, ethnicity, gender, or any other suspect classification, and its right to be free from punitive damage awards is not among the small set of rights fundamental enough to warrant protection under the equal protection clause. There exists a rational basis for punitive damages awards and the world’s largest farm implements manufacturer is hardly in a class that has traditionally been discriminated against. Accordingly, this portion of the motion for judgment notwithstanding the verdict is denied. (c) The excessive fines and cruel and unusual punishment clauses of the Eighth Amendment to the United States Constitution and Article I, Section 17 of the Iowa Constitution; Deere argues that under Iowa Code § 668A.1(2), which provides that if the defendant’s conduct was not directed specifically at the plaintiff, the punitive damages award is to be divided into two parts, with 25% of the award to be awarded to the plaintiff and 75% of the award to be placed in a civil reparation trust fund to be administered by either this court or the state court administrator. They contend that this would constitute an excessive fine. The relevant portion of Iowa Code § 668A.1(2) states: 2. An award for punitive or exemplary damages shall not be made unless the answer or finding pursuant to subsection 1, paragraph “a”, is affirmative. If such answer or finding is affirmative, the jury, or court if there is no jury, shall fix the amount of punitive or exemplary damages to be awarded, and such damages shall be ordered paid as follows: a. If the answer or finding pursuant to subsection 1, paragraph “b”, is affirmative, the full amount of the punitive or exemplary damages awarded shall be paid to the claimant. b. If the answer or finding pursuant to subsection 1, paragraph “b”, is negative, after payment of all applicable costs and fees, an amount not to exceed twenty-five percent of the punitive or exemplary damages awarded may be ordered paid to the claimant, with the remainder of the award to be ordered paid into a civil reparations trust fund administered by the state court administrator. Funds placed in the civil reparations trust shall be under the control and supervision of the executive council, and shall be disbursed only for purposes of indigent civil litigation programs or insurance assistance programs. In support of its argument Deere cites McBride v. General Motors Corp., 737 F.Supp. 1563, 1577-78 (M.D.Ga.1990). In McBride, the court found that the product liability punitive damage award section of the Georgia Tort Reform Act of 1987, violated the Excessive Fines Clause of the United States Constitution. The Georgia punitive damage section in question, in pertinent part, stated: 51-12-5.1. Punitive damages. (e)(1) In a tort case in which the cause of action arises from product liability, there shall be no limitation regarding the amount which may be awarded as punitive damages.... (2) Seventy-five percent of any amounts awarded under this subsection as punitive damages, less a proportionate part of the costs of litigation, including reasonable attorney’s fees, all as determined by the trial judge, shall be paid into the treasury of the state through the Fiscal Division of the Department of Administrative Services. Upon issuance of judgment in such a case, the state shall have all rights due a judgment creditor until such judgment is satisfied and shall stand on equal footing with the plaintiff of the original case in securing a recovery after payment to the plaintiff of damages awarded other than as punitive damages.... This is clearly not the situa-tioirirTTowa. Iowa Code § 668ATl/'dóes_uot.proyide the State of Iowa with any interest in the punitive damage award. UCcIear distinction can be maderiJetween funds that are to be placed into the state treasury and those funds that are to be placed into a civil /reparations trust fund to be administered //by the courts. See generally, Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). Accordingly, this portion of the motion for judgment notwithstanding the verdict is denied. (d) The double jeopardy and self-incrimination clauses of the Fifth Amendment to the United States Constitution and the double jeopardy clause of Article I, Section 12 of the Iowa Constitution; Deere fails to put forward any meaningful argument in this area, and this court is unaware of any such compelling law under the circumstances we have before us. Accordingly, it is denied. (e) The ex post facto clause of Article I, Section 10 of the United States Constitution and Article I, Section 21 of the Iowa Constitution. Deere fails to address this argument in its brief and the court finds no rational basis for a discussion of this point. Accordingly it is denied. (3) The court erred in submitting the issue of punitive damages to the jury when there was insufficient admissible evidence of any willful and wanton conduct by Deere. As mentioned above, this is the second trial before this court involving this type of accident on this model of combine. In Christopherson, this court found sufficient evidence to submit punitive damages, and in this matter additional evidence was presented to support the submission of punitive damages. For example, the. sale of the 3,100 “pipeline” combines after the production line modification had been made as well as the failure to warn of the danger at the custom combining clinic and in the letters sent to the dealers and owners. The court finds more than sufficient evidence was presented, and submission of the issue of punitive damages was clearly warranted by the evidence and because Deere delayed acting responsibly in order to save money. Accordingly, the issue in the motion for judgment notwithstanding the verdict is denied. (4) The court erred in submitting the issue of failure to warn where the danger was open and obvious and plaintiff had actual knowledge of the danger, and in failing to direct a verdict on the basis that as a matter of law any lack of warnings was not the proximate cause of plaintiffs injury. Deere argues that the danger of injury while cleaning grain residue out of the lower clean-out door on the vertical unloading auger was an open and obvious danger. In support of its argument, Deere states that any person who has worked around a farm knows that the insertion of a limb into a moving auger will result in bodily injury, and that as a matter of law this court should have directed a verdict for Deere on the issue of failure to warn. As the undisputed facts show, approximately 22 farm workers had been injured on the Titan series combine around the clean-out door prior to the Burke accident, and 4 after. The standard for summary judgment is analogous to that for a directed verdict under Rule 50(a) of the Federal Rules of Civil Procedure. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). After hearing the testimony of the five live similarly injured witnesses, a question of material fact was clearly present on the question of whether or not this danger was open and obvious, and as such the motion for directed verdict was denied. Deere does not bring any additional law, or argument forward that was not argued and considered at the time of the argument on the directed verdict motion. Accordingly, this portion of the motion for judgment notwithstanding the verdict is denied. (5)The court erred in failing to direct a verdict on strict liability for defective design for the reason that the product was not unreasonably dangerous as a matter of law, and that any unreasonably dangerous condition was not the proximate cause of plaintiff’s injury. The court found at the time of trial, and continues to so find, that there was a question of material fact as to whether or not the unloading auger was unreasonably dangerous under a balancing process which compares the utility of a product on one side and the risk of its use on the other. See Fell v. Kewanee Farm Equipment Co., 457 N.W.2d 911, 918 (Iowa 1990). A directed verdict on strict liability for defective design was not appropriate. In addition the court also found, and continues to find, that a finding of proximate cause also required a determination of a material fact, which would preclude the sustaining of a motion for a directed verdict. Accordingly, this two-pronged issue in support of the motion for judgment notwithstanding the verdict is denied. (6) The court erred in permitting the jury to impose liability on Deere for post-sale conduct concerning warnings and product modification programs in the absence of any legal duty to recall or modify products previously sold. Deere argues that the court committed error by allowing evidence to be interjected into this trial, which had as its focus Deere’s post-sale conduct concerning warnings and product modification programs in light of the absence of any duty to recall products previously sold. In support of its argument, Deere cites Hale v. Firestone Tire & Rubber Company, 820 F.2d 928 (8th Cir.1987); Mulligan v. Lederle Lab., 786 F.2d 859 (8th Cir.1986); Ferren v. Richards Mfg. Co., 733 F.2d 526 (8th Cir.1984); Parks v. City of Marshalltown, 440 N.W.2d 377 (Iowa 1989); Ryan v. Arneson, 422 N.W.2d 491 (Iowa 1988); Schneider v. Middleswart, 457 N.W.2d 33 (Iowa App.1990); and Ettus v. Orkin Exterminating Co., Inc., 233 Kan. 555, 665 P.2d 730 (1983). After a thorough review of the above listed cases, the court finds that either these cases cannot be stretched as far as Deere would like them to stretch, or they are clearly distinguishable on other grounds. Hale, Ferren, and Mulligan, are all products liability cases arising out of the Eighth Circuit; however, they come out of states other than Iowa, with different laws, and can hardly be controlling. In addition Hale and Ferren hold that post-sale conduct cannot form the sole basis for punitive damages. Mulligan held that all post-sale conduct need not be excluded. Rather, it holds that post-sale knowledge alone may not form the basis of a punitive damage award, but the jury might consider post-sale conduct to determine conscious indifference to the consequences of its previous actions. Deere’s next case, Parks, is not a products liability case. The Iowa Supreme Court held in Parks that tortious conduct after a breach of contract will not form the basis of recovery of punitive damages for breach of contract. The next two cases, Ryan and Schneider, are Iowa cases that address the excessiveness of punitive damages and not the evidence which proves the damages. The final case, Ettus, is a case out of the Supreme Court of Kansas involving claims of fraud and negligence. After review of this case, the court finds the following passage to be related to the case at hand. The Kansas Supreme Court cited with favor 25A C.J.S, Damages § 159 at page 68, wherein it stated: Evidence of other acts of the defendant, either preceding or following the particular acts alleged and for which damages are sought, is admissible if so connected with the particular acts as tending to show defendant’s disposition, intention, or motive in the commission of the particular acts for which damages are claimed. In response, the plaintiff argues that Iowa Code § 668.12 recognizes a continuing duty to warn in Iowa. That section states: Liability for products-state of the art defense. In any action brought pursuant to this chapter against an assembler, designer, supplier of specifications, distributor, manufacture or seller for damages arising from an alleged defect in the design, testing, manufacturing, formulation, packaging, warning, or labeling of a product, a percentage of fault shall not be assigned to such persons if they plead and prove that the product conformed to the state of the art in existence at the time the product was designed, tested, manufactured, formulated, packaged, provided with a warning, or labeled. Nothing contained in this section shall diminish the duty of an assembler, designer, supplier of specifications, distributor, manufacture or seller to warn concerning subsequently acquired knowledge of a defect or dangerous condition that would render the product unreasonably dangerous for its foresee able use or diminish the liability for failure to so warn. (Emphasis added.) During the trial the court was apprised that the Restatement (Second) of Torts § 388 places a duty upon a manufacturer of product to warn subsequent users of a known danger. Section 388 was adopted by the Iowa Supreme Court in West v. Broderick & Bascom Rope Company, 197 N.W.2d 202, 209 (Iowa 1972). Section 388 of the Restatement (Second) of Torts states: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. The West, court stated further that § 394 makes § 388 applicable to manufacturers and elaborated on the extent of the notice that must be given when they stated: How far down the distributive chain a manufacturer must warn is determined by the general requirement of reasonable care. As stated in Restatement, Torts 2d § 388, Comment n, “Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it.” See also Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Southwestern L.J. 256, 281 (“the warning must be reasonably calculated to reach such persons [ultimate users], directly or indirectly”). Whether reasonable care requires warning beyond the manufacturer’s immediate vendee in a particular case depends upon various factors. See Comment n, supra. Among them are the likelihood or unlikelihood that harm will occur if the vendee does not pass on the warning to the ultimate user, the trivial or substantial nature of the probability that the particular vendee will pass on the warning, and the ease or burden of the giving of warning, by the manufacturer to the ultimate user. As stated in Comment n regarding disclosure to the user of the properties of products, “Where the danger involved in the ignorant use of their true quality is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.” Id. at 211. When ruling on the admissibility of this evidence relating to Deere’s post-sale conduct to this plaintiff, this court stated that this evidence was not being offered or admitted for the purpose of imposing a duty of recall on Deere, or involved any finding of agency. The admission of this evidence was allowed as a response to the Deere’s “we are as white as the driven snow” or “if our head was empty our heart was pure” type of argument. The court at the time of ruling on the admissibility had been apprised of the theme being developed by Deere. Deere argued that through its safety committee, it had taken every possible course of action including the issuance of the warning decal and the 99% completion rate on the field modification of unloading auger. The Eighth Circuit Court of Appeals in Kehm v. Proctor & Gamble Mfg. Co., 724 F.2d 613, 622 (8th Cir.1983), held evidence of