[765 So.2d 1270] Luther T. Munford, Jackson, Reginald Arthur Gray, III, Hattiesburg, Rebecca Hawkins, Christopher R. Green, Ridgeland, Attorneys for Appellant.

Keith M. Alexander, Southaven, F. Douglas Montague, III, Hattiesburg, Crymes G. Pittman, Jackson, David Shoemake, Collins, C. Victor Welsh, III, Jackson, Attorneys for Appellees.

EN BANC.

ON WRIT OF CERTIORARI

MILLS, Justice, for the Court:

This matter is a wrongful death action which arises out of a collision between an automobile driven by Cheryl May and a Greyhound bus. May and her [765 So.2d 1271] three children were killed in the collision. The administrators of the respective estates of the children (the Administrators) filed suit against Greyhound Lines, Inc. and the estate of Cheryl May. Greyhound and May's estate then filed cross-claims against one another for the property damage to the bus and for the wrongful death of May, respectively. Three of the passengers in the bus eventually joined in the suit. The matter was tried in Simpson County Chancery Court, and the chancellor found May 90 percent at fault and Greyhound 10 percent at fault. A judgment was entered in the amount of $1.1 million for each of May's children. A judgment for the passengers was entered in the amount of $680,000 for Nancy Bonanno, $285,000 for Paul Cotter, and $50,000 for Robert Riley.

The Court of Appeals affirmed the awards of the passengers, but it reversed and remanded the damages awards of the children, finding, inter alia, that the future incomes of the deceased children should be based on "some type of average income for persons in the community...." Greyhound Lines, Inc. v. Sutton, No. 97-CA-00634-COA, slip op. ¶ 33 (Miss.Ct.App. 1999). Greyhound and the Administrators filed petitions for the writs of certiorari which we granted. We affirmed the decision of the Court of Appeals as to the liability of Greyhound, but we reverse its decision regarding the damage awards for the deaths of the children and reinstate the chancellor's damage awards.

FACTS

On the night of January 22, 1995, Cheryl May and her three children, Marcus, eight, Sumone, three, and Nicholas, one, were diving on Old Hebron Road in Jefferson Davis County. May ran a stop sign and collided with a greyhound bus traveling north on State Highway 13. May and her three children were killed instantly, and the driver of the bus, as well as some of the passengers, were injured.

A civil action was subsequently filed against Greyhound and May's estate by Gerald Sutton, the father and statutory beneficiary of Nicholas and Sumone, as well as the Administrator of their estates, and Donnie Caughman, Administrator of the estate of Marcus. Greyhound then filed a cross-claim against May's estate for property damage to its bus, and May's estate in turn filed a cross-claim against Greyhound for the wrongful death of May. Three of the passengers on the bus at the time of the collision, Nancy Bonanno, Paul Cotter, and Robert Riley, each intervened and filed their own suits against May's estate and Greyhound. The trial of all of the actions commenced before the Chancery Court of Simpson County on February 10, 1997, and concluded on February 14, 1997.

In his opinion and order entered on March 6, 1997 the chancellor found that Greyhound was 10 percent at fault for the accident and May was 90 percent at fault for the accident. The Chancellor awarded $1.1 million each for the deaths of Marcus, Nicholas, and Sumone, and further awarded $680,000 to Bonanno, $285,000 to Riley, and $50,000 to Cotter.

Greyhound appealed, and the Administrators cross-appealed. The Court of Appeals affirmed as to the liability of Greyhound, as well as the awards to the bus passengers, but reversed and remanded the damage awards for the deaths of the children. Greyhound and the Administrators each filed petitions for writs of certiorari, both of which were granted.

ANALYSIS

We begin with our often cited and familiar standard of review.

[T]his Court reviews questions of law de novo. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992).

. . . . .

This Court will not disturb those findings [of a chancellor] unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Reversal is permitted only in those cases where the chancellor was manifestly in [765 So.2d 1272] error in his finding of fact and manifestly abused his discretion. Where the factual findings of the chancellor are supported by substantial credible evidence, they are insulated from disturbance on appellate review.

Brooks v. Brooks, 652 So.2d 1113, 1117 (Miss.1995) (quoting Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986)).

1. Greyhound's liability

Greyhound argues that the Court of Appeals erred in affirming the chancellor's decision regarding liability. Specifically Greyhound argues that the Court of Appeals misconstrued Miss.Code Ann. § 63-3-505 (1996) to require every driver on a through road to slow down as the driver approaches an intersection, even where the crossing road has a stop sign, because, as Greyhound asserts, the only duty of a driver on a through road is to react reasonably when the driver knows or should know that the driver on the crossing road will run the stop sign. Greyhound further argues that the opinion of the Court of Appeals is in conflict with Jobron v. Whatley, 250 Miss. 792, 168 So.2d 279, 284 (1964), and Vines v. Windham, 606 So.2d 128, 131 (Miss.1992).

In response, the Administrators argue that the factual findings of a chancellor are not to be reversed where they are supported by substantial credible evidence in the record, and because they were in this particular case, the Court of Appeals properly affirmed the decision of the chancellor as to liability. Specifically, they argue that the chancellor's finding that the bus driver had a warning of several seconds before the impact is supported by the testimony of Greyhound's own witnesses and passengers. The Administrators further assert that Jobron, provides the reasonable interpretation to Miss.Code Ann. § 63-3-505 which Greyhound argues it should be given.^[1]

On this issue, the Court of Appeals found:

We also hold the chancellor applied the proper legal standard in regard to the duty to keep a proper lookout. In Jobron v. Whatley, 250 Miss. 792, 168 So.2d 279, 284 (1964), our supreme court delineated the proper standard:

Insofar as the appellee's having the right of way, or the right to assume that the driver of the other car would stop his car before entering the intersection, is concerned, this Court has repeatedly stated what the rule is, namely: That the motorist's right to assume that the driver of a vehicle proceeding toward an intersection will obey the law of the road, which requires him to stop before entering the intersection, exists only until he knows or in the exercise of ordinary care should know otherwise.

Jobron is very similar to the case at bar as it involved a car having the right of way which was hit by a car which ran a stop sign. Id. at 280. A passenger in the car that was hit filed suit against both the driver who ran the stop sign and the driver of the car she was in for failing to keep a proper lookout and failing to properly control the car after seeing the other car approaching. Id. The trial court in Jobron granted a peremptory instruction to the driver of the car the passenger was in because the court felt the passenger failed to make an issue of negligence for the jury. Id.Based on the evidence presented, our supreme court held "[c]ertainly it would be a question for the jury to determine, whether or not the appellee was guilty of negligence in failing to use her brakes and slow her vehicle down so that, when it appeared Dr. White was not going to obey the stop sign and bring his vehicle to a stop, she would have had her vehicle [765 So.2d 1273] under control and would have been able to avoid the collision." Id. at 282.

Turning to the case at bar, the bus driver had both the duty to slow down as he approached the intersection and a duty to brake when and if it became evident May was not going to stop for the intersection. The chancellor applied the correct legal standards. Therefore, we cannot disturb his opinion for any deficiencies with regard to the law. However, the chancellor also made factual findings that the bus driver breached both these duties. To uphold the chancellor's opinion both of these findings of fact must be supported with substantial credible evidence.

Greyhound Lines, slip op. ¶¶ 14-16.

After examining the evidence found in the record, the Court of Appeals went on to hold:

Substantial credible evidence supports the chancellor's finding that the driver breached his duty to slow down. First, the driver himself testified he did not start to brake until after impact. Also as stated above, evidence supports the findings that the driver was in fact speeding at 56 mph. Although there was no sign warning the driver of the intersection, this does not relieve him of his duty to slow down at that point a reasonable person would know an intersection was approaching. [Passenger] Weaver testified that he saw the lights of May's vehicle five seconds before impact. At that moment, the driver should be in the process of slowing down and keeping a proper lookout of the approaching car.

Substantial credible evidence supports the chancellor's findings that the driver was not keeping a proper lookout. Under Jobron, a driver has no duty to take defensive action until such time as a reasonable person would know a car approaching an intersection will not stop. Id. From the testimony presented, the chancellor could conclude that a driver keeping a proper lookout and paying attention would have known that May's car was not going to stop at some time before impact. The evidence shows that Weaver saw May's car and saw that it was not going to stop. Weaver was so sure it would not stop that he yelled out. This testimony comes from a passenger sitting half way down the bus and to the left of the driver and point of impact. Weaver had time to see May's vehicle, decipher that it would not stop, and had time to yell out. [Passenger] Bryant, on the other hand, testified that he never even saw May's vehicle until impact. The reasonable inference is that a driver in the front of the bus and on the side of impact who was keeping a proper lookout would know or should have known that May would not stop sometime before Weaver's yell. Since the driver failed to see May's vehicle, and therefore, could not have possibly known it would not stop, the driver breached his duty to keep a proper lookout.

Greyhound Lines, slip op. ¶¶ 18-19.

Miss.Code Ann. § 63-3-505 (1996) provides in relevant part:

The driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic.

We find that the Court of Appeals was correct in affirming the chancellor's application of the statute to the present case. In Fielder v. Magnolia Beverage Co., 757 So.2d 925 (Miss.1999), the appellants brought an action for injuries they sustained when a delivery truck allegedly crossed the center line of the road into their lane of traffic and forced them off the road while they were negotiating a curve. Id. at 927-28. The jury found in favor of the defendant. Id.On appeal, one of the questions before the Court was whether the trial court erred in giving an instruction that stated that Fielder had a duty to [765 So.2d 1274] decrease her speed when approaching and negotiating the curve. Id. at 935.

There the Court stated:

In regards to instruction D-14, the Fielders offer this Court no argument other than their objection made at trial. At trial, the Fielders objected on grounds that "[i]t's not every curve in this road that a person is required to reduce the speed." The trial court overruled the objection. MBC [Magnolia Beverage Company] contends that the trial court properly gave instruction D-14, because Miss.Code Ann. § 63-3-505 states, in pertinent part, that "[t]he driver or operator of any motor vehicle must decrease speed when ... approaching and going around a curve." Miss.Code Ann. § 63-3-505 (1996).

In Vise v. Vise, 363 So.2d 548 (Miss. 1978), this Court approved an instruction requiring the driver of a motor vehicle to decrease speed when approaching and going around a curve. Id. at 551. Therefore, according to statutory mandate and case precedent, we hold that the trial court properly granted instruction D-14. Read as a whole and in context, instructions D-13 and D-14 fairly announce the law and create no injustice; thus, no reversible error is found.

Fielder, 757 So.2d at 936 (emphasis added). We therefore find Greyhound's argument on this issue is without merit.

Greyhound next argues that the Court of Appeals, as well as the chancellor, relied on short time estimates to support the judgment. Greyhound argues that such estimates have previously been held to be inherently unreliable, and therefore the Court of Appeals erred when it found that the estimates provided substantial evidence to support the factual findings of the chancellor. Greyhound further argues that the decision of the Court of Appeals is in conflict with Yazoo & MVR Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80 (1938). In response, the Administrators argue that the Court of Appeals did not rely on the testimony of any single witness in finding that Greyhound's driver had a several second warning within which to stop the bus, but rather based its holding on the testimony of all of the witnesses who were passengers in the bus at the time of the collision.

In Lamensdorf, the Court was faced with a challenge to the weight of the evidence where a single witness testified, contrary to all of the other evidence, that the decedent's vehicle had been stalled on a train track for some forty-five seconds and that the train which struck the vehicle in which the decedent was riding had ample time to stop. 180 Miss. at 449, 178 So. at 80. There, the Court found:

That estimate by Brock cannot be reconciled with the surrounding facts as shown by all the other witnesses; and weighing it in the scales of all ordinary human experience and observation, as it is our duty to do, it must be pronounced as incredible as a reasonable probability. It is possible, as almost anything is possible, that the length of time did intervene as Brock estimates, but we repeat that as a probability it is incredible; and we suppose it is not now necessary to more than briefly refer to what we have so often heretofore said, to wit, that to present a possibility, rather than a believable probability, is not a sufficient basis for a verdict and judgment

Id.

The Court went on to say:

The scintilla of evidence rule has been discarded in nearly all jurisdictions, and is not recognized in this state; but verdicts must be based upon substantial evidence and that evidence must be reasonably believable. Whatever a jury here or there might chance to believe, we must require that the evidence upon which they act must be within state-wide legal standards, and one of these, as said, is that the evidence must be substantial and must be reasonably believable. Common experience and observation among all sensible men, who are impartial and without interest upon the [765 So.2d 1275] issue, can lead to but one reasonable or substantial conclusion in respect to estimates of short periods of time, especially when that estimate, formed in a period of excitement, is in terms of seconds. So it is that all must agree with what the law books say on that subject: "Estimates of the duration of short period of time into which much experience is crowded are notoriously inexact and are apt to be excessive, especially if the mind was in a state of anxiety or expectation, and a witness who assumes to measure time with accuracy under such circumstances discredits himself." 23 C.J. p. 37, and cases there cited. See, also, 2 Moore on Facts, p. 992 et seq. In this case, for instance, Brock estimated the time of the train from the bridge to the crossing at 15 seconds, while his wife said it was 3 seconds, and neither of them had it right.

If we were to accept the estimate of 45 seconds by Brock as the duration of time that deceased was stalled on the track and discard all the other evidence, and allow this single estimate as sufficient in dependable substance to support a verdict, it would be to say that we will accept as substantially and controllingly dependable that which is declared by the authorities to be notoriously inexact and unreliable, and, moreover, would convict this train crew as bent upon homicide, and the deceased upon suicide, or at least that he was wholly indifferent to the most compelling motive or instinct which, under all circumstances and in every eventuality, incites men to action in their own behalf, namely, the instinct of self-preservation.

180 Miss. at 450-51, 178 So. at 80-81.

In Lamensdorf this Court held that testimony based on estimates of short periods of time could not be the sole basis for a verdict where the testimony was substantially contradicted by the testimony of the other witnesses and defied logic. In the present case, two passengers testified that they saw the car at least five seconds before the impact. One of the passengers, Jackie Wayne Weaver, testified that he yelled out simultaneously with the impact, and that portion of his testimony was corroborated by the testimony of another passenger, Robert Riley. We therefore find that Greyhound's argument on this issue is without merit, and we affirm the decision of the Court of Appeals as to the liability of Greyhound.

2. Damage awards of the children

The Administrators argue that the Court of Appeals erred in reversing the damage awards of the children. Specifically, they argue that the Court of Appeals erred when it rejected the testimony of all of the economists and held that the damages should be based on "some type of average income for persons of the community in which the decedents lived." See Greyhound Lines, slip op. ¶ 33. Greyhound agrees that the Court of Appeals erred in holding that on remand the damages should be based on some sort of average income of the community in which the children lived.

On this issue, the Court of Appeals found:

An award of damages by a chancellor is a finding of fact. As stated time and again, "we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied." Matter of Estate of Chambers, 711 So.2d 878, 880-81 (Miss.1998) (citations omitted)....

. . . .

To calculate the present cash value of the life expectancy of the deceased one need merely to take the projected annual future income of the deceased multiplied by their work life expectancy, discount it to present cash value and deduct a percentage for the deceased's personal living expenses. Sheffield v. Sheffield, 405 So.2d 1314, 1318, (Miss. 1981); see also Jones v. Shaffer,573 So.2d 740, 742 (Miss.1990)("In computing a person's lost net cash value, a personal consumption factor must be taken into account."). The plaintiffs' economic expert, Carroll David Channell, [765 So.2d 1276] fixed Marcus's economic loss at $613,436, Nicholas's economic loss at $589,697, and Sumone's economic loss at $334,074. The defense's economic expert, Kenneth J. Boudreaux, testified that the present net cash value of the three children was for Marcus $1,753.04, for Nicholas $1,602.67, and for Sumone $520.30.

Channell based his figures on the projected work life expectancy for each child that he attained from a February 1986 bulletin of the U.S. Department of Labor, entitled Effects of Race and Education Bulletin 2254; on the average earnings of a high school graduate, including the employer paid portion of social security adjusted for taxes, taken from the U.S. Bureau of Census CD Rom, entitled Income and Poverty 1993, with a real wage growth of .87% per year; and a personal maintenance allowance of 30% based on a study by economist Earl Cheit. Channell also discounted his sums to present value. The discrepancies between the children's economic losses were based on the discount factors used as each child would enter the workforce at different years, and the fact that a female child will earn less money and work less time over her lifetime.

Boudreaux based his figures on the estimate [sic] life expectancies of each of the children using the U.S. government vital statistics tables and the work life tables of the U.S. Government Bureau of Labor Statistics; an earning amount of slightly over $8,000 a year, based on Cheryl May's income, with an allowance of a 5% increase a year; and a consumption rate of 94% from the U.S. statistical abstract of the United States. Boudreaux also discounted his sums to present value.

We should start by saying that the calculation of the present net cash value of the life expectancy of a child is speculative at best for a child has no work history upon which to draw conclusions. The paramount question to be answered is what future annual income should be assigned to a child with no work history? Channell used an average income figure for a high school graduate, while Boudreaux used Cheryl May's yearly income of $8,000.

The chancellor in his opinion assumed that both economists based their figures on the earning background of the [sic] Cheryl May. This was simply not true, and it was manifest error for the chancellor to state so in his opinion. Furthermore, it is manifest error to tie the children's projected future income to that of their mother. Boudreaux himself testified that he had no opinion about what the proper base income was for any of his calculations, and he simply used Cheryl May's income figure provided to him. We see no reason to ground the future income of the children based solely on the income of the mother. We can only guess if Greyhound would still want to tie the children's future income to that of their mother if at the time of her death she was making six figures. We hold that the base income of the children should be established with some type of average income for persons of the community in which the decedents lived.

Greyhound Lines, Inc., slip op. ¶¶ 27-33.

The conclusion by the Court of Appeals that the income for the children should be based on some sort of average income for persons of the community in which they lived, as far as we can find, has no basis in our law. Additionally, such a method is just as speculative as basing the recovery on the earning history of the parents. It is both unfair and prejudicial to ground the projected future income of a deceased child on either basis. Both methods result in potentially disparate recoveries for children from affluent communities or with affluent parents, as opposed to children from less affluent areas or with less affluent parents.

Who is to say that a child from the most impoverished part of the state or with extremely poor parents has less of a [765 So.2d 1277] future earnings potential than a child from the wealthiest part of the state or with wealthy parents? Today's society is much more mobile than in the past. Additionally, there are many more educational and job-training opportunities available for children as a whole today. We must not assume that individuals forever remain shackled by the bounds of community or class. The law loves certainty and economy of effort, but the law also respects individual aptitudes and differences.

Therefore, we hold that in cases brought for the wrongful death of a child where there is no past income upon which to base a calculation of projected future income, there is a rebuttable presumption that the deceased child's income would have been the equivalent of the national average as set forth by the United States Department of Labor. This presumption will give both parties in civil actions a reasonable benchmark to follow in assessing damages. Either party may rebut the presumption by presenting relevant credible evidence to the finder of fact. Such evidence might include, but is certainly not limited to, testimony regarding the child's age, life expectancy, precocity, mental and physical health, intellectual development, and relevant family circumstances. This evidence will allow the litigants to tailor their proof to the aptitudes and talents of the individual's life being measured.

We find this standard to be equitable for all the parties because it allows the fact finder to take into account the unique circumstances of each individual person in accordance with current Mississippi case law. "Each case must depend upon its own facts." New Orleans & Northeastern R.R. Co. v. Thornton, 191 So.2d 547, 551 (Miss.1966) (citing Illinois Cent. R.R. v. Ragan, 252 Miss. 335, 173 So.2d 433 (1965)).

The Administrators also argue that the Court of Appeals erred in holding that it was error for the chancellor to use a consumption rate which was based on hypothetical spouses and children which would require support. They argue that it was not improper for their economist to base his opinions on hypothetical spouses and children because this Court in Jones v. Shaffer, 573 So.2d 740 (Miss.1990), reversed a damage award for funeral expenses only where the economist in that case had based his calculations on a hypothetical spouse. Greyhound, on the other hand, argues that the Court of Appeals was correct in holding that hypothetical beneficiaries could not be used to reduce the decedents' personal consumption factor.

On this issue, the Court of Appeals found:

The chancellor next used the personal consumption rate of 30% as advocated by Channell. Channell testified that this consumption rate was based on the projection that the children would marry and have children, or that they would have partners who would share common expenses. Channell testified that the consumption rate is lowered because with children one would consume less on oneself, and if married one would consume less than if one were single. Channell further testified that for a forty-five year old man who had never married and lived alone, he would use a 60% consumption rate. On cross-examination, Channell testified as follows:

Well, case specific, no. For young children you have an issue that—the question is—the economic question is, what position are they going to be in over the remainder of their lives? Are they going to be married? Are they going to live with someone? Are they going to have a roommate? Are they going to—do they have sisters or other relatives that are going to survive them? If that's the case, then a thirty percent consumption allowance is certainly appropriate because the income they earn could be available to the support of family members, could be available to the support of parents in their old age. There are numerous [765 So.2d 1278] things that are allocations that can be made from that income.

When [you] go up to—you try to use personal savings rates of three percent and a consumption rate of ninety-seven percent, then certainly that's out of line in my view. That's not personal consumption. In fact, I would argue that the maintenance allowance should consist of that amount of monies necessary to sustain a meaningful life style. In other words, food, clothes, shelter, transportation.

Channell's testimony was that the children would be spending money on hypothetical future spouses and children, therefore their consumption rate is lowered to account for the money that would have been spent on support of the hypothetical future spouses and children. It is an attempt to allow beneficiaries to recover money that the deceased would have spent on them during the deceased's lifetime by lowering the deceased's personal consumption rate. In essence, to allow beneficiaries to recover everything they would have received if the deceased had lived. We hold that it was manifest error for the chancellor to use a consumption rate which is based on a hypothetical prospect that the children would eventually have a spouse and have children of their own, both of which require support.

. . . .

Mississippi has never adopted the idea of lowering a consumption rate or increasing a saving rate to specifically make up for money spent on statutory beneficiaries during the deceased's lifetime. We decline to offer any opinion as to whether Mississippi recognizes such a calculation in determining the present net cash value of the life expectancy of the deceased. However, even if Mississippi recognized such, it would not be proper in this instance as the children were not supporting anyone at the time of their deaths.

Greyhound Lines slip op. ¶¶ 34-37.

Contrary to the opinion of the Court of Appeals, we have indeed recognized personal consumption factors. In Jones v. Shaffer, 573 So.2d 740 (Miss. 1990), a wrongful death action was brought for the death of an unmarried twenty-two year old who only left his five brothers and three sisters surviving him. We found that the trial court erred in not granting a new trial when the jury awarded damages for funeral expenses only, and in so doing, we stated:

Dr. Paul Oliver, an expert in the field of economics, testified for the plaintiff. He was the only such expert to testify in the case. According to Dr. Oliver, the average work life expectancy of a 22 year old male person is 41 years. In computing a person's lost net cash value, a personal consumption factor must be taken into account. In his direct testimony, he indicated that the decedent's personal maintenance consumption allowance would be twenty-six per cent, which is for a two person family and the highest percentage shown by the tables of the Department of Labor. Using that rate, Dr. Oliver testified for the last full year the decedent worked, he earned $9,900, which computed the present value of the decedent's lost income at $171,000.00. This did not take into account any taxes that might be paid during the decedent's life, had he lived.

On cross examination by Mr. Sanders, attorney for the defendant, Kim Shaffer, Dr. Oliver was asked to compute the decedent's lost income using 40% as the deceased personal consumption rate and Dr. Oliver arrived at the decedent's lost net income as $101,142.00. On further cross examination by the attorney for Jeffries' Trucking, Dr. Oliver was asked to assume that the decedent's personal consumption rate was 67% and Dr. Oliver arrived at the decedent's lost net [765 So.2d 1279] income at $70,495.00. It is incredible that the verdict ignored and did not respond favorably to this element of damages

Id. at 742 (emphasis added).

Today we hold that the consumption rate is another factor which may be argued by the parties to the finder of fact in support of increasing or decreasing the presumption that the deceased child's income would have been equivalent to the national average. The credibility and weight of such testimony as are to be determined solely by the finder of fact. As the Court of Appeals observed in the present case, Channell based his testimony and calculations on the average earnings of a high school graduate and a personal maintenance allowance of 30% based on a study by economist Earl Cheit. Greyhound Lines, slip op. ¶ 30. The chancellor chose to give credence to Channell's testimony, and rendered a verdict accordingly. This aspect of the chancellor's decision was supported by substantial evidence, and as a result, we cannot say that the chancellor erred. We therefore reverse the decision of the Court of Appeals and reinstate the damage awards for the death of the children.

CONCLUSION

We conclude that the chancellor did not err in finding Greyhound 10 percent at fault in this collision, and therefore, we affirm the decision of the Court of Appeals as to the liability of Greyhound. As to the damage awards for the death of the children, we hold that in cases brought for the wrongful death of a child where there is no past income upon which to base a calculation of projected future income, there is a rebuttable presumption that the deceased child's income would have been the equivalent of the national average as set forth by the United States Department of Labor. However, that presumption may be rebutted by presenting other relevant credible evidence as will aid the finder of fact in making its determination. We further hold that the consumption rate is one such factor that may be taken into account by the finder of fact. Finally, we find that in the present case the chancellor's damage awards were supported by substantial evidence, and we therefore reverse the decision of the Court of Appeals and reinstate the damage awards for the deaths of the children.

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART.

PRATHER, C.J., PITTMAN, P.J., McRAE AND WALLER, JJ., CONCUR. COBB, J., CONCURS IN PART. SMITH, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, P.J., AND COBB, J. DIAZ, J., NOT PARTICIPATING.

SMITH, Justice, concurring in part and dissenting in part:

I agree with the majority opinion insofar as it affirms the decision of the Court of Appeals as to the liability of Greyhound Lines, Inc. However, I disagree with the majority's conclusion that the chancellor correctly utilized evidence of a consumption rate based upon hypothetical spouses and children which would require the support of the deceased. Therefore, I respectfully dissent.

In my view, the majority erroneously relies upon Jones v. Shaffer, 573 So.2d 740 (Miss.1990),as authority for the correct treatment of net cash value. In calculating the damage award for the deceased children, the chancellor utilized evidence of a consumption rate based upon hypothetical spouses and children which would require the support of the deceased. The Court of Appeals held that it was error to base the children's personal consumption factors on a hypothetical prospect that the children would eventually have a spouse and children of their own, both of which would require support. The Court of Appeals stated, "Mississippi has never adopted the idea of lowering a consumption rate or increasing a saving rate [765 So.2d 1280] to specifically make up for money spent on statutory beneficiaries during the deceased's lifetime.... However, even if Mississippi recognized such, it would not be proper in this instance as the children were not supporting anyone at the time of their deaths." Greyhound Lines, Inc. v. Sutton, No. 97-CA-00637-SCT, slip. op. ¶ 37.

The majority states, "Contrary to the opinion of the Court of Appeals, we have indeed recognized personal consumption factors," citing Shaffer. Majority Op. at 1278. The majority's treatment of Shaffer, however, is misguided. The question is not whether this Court has ever recognized personal consumption factors. We undisputably have. In Shaffer, this Court stated, "In computing a person's lost net cash value, a personal consumption factor must be taken into account." Shaffer, 573 So.2d at 742. Neither Greyhound nor Sutton argues, and the Court of Appeals did not hold, that this Court should not recognize a personal consumption factor. The question is whether we have ever allowed the personal consumption factor to be decreased based on hypothetical spouses and children. Shaffer does not speak to this question.

In Shaffer, the deceased, a twenty-two year old male, was unmarried at the time of his death and had no children. He was survived by five brothers and three sisters. The trial court instructed the jury on the following elements of damages: (1) funeral expenses of the deceased; (2) net cash value, life expectancy of the deceased; (3) pain, suffering and mental anguish; and (4) loss of companionship to the siblings. The jury, however, returned a verdict for the plaintiff only in the exact amount of the funeral expenses. The trial court refused to grant the motion for new trial on the issue of damages. This Court reversed. In its opinion, the Court separately examined the evidence put before the jury regarding each of the above four elements of damages. In discussing net cash value, the Court reviewed the testimony of Dr. Paul Oliver, the plaintiff's expert economist. Oliver was the only economic expert to testify in the case. Oliver testified that the decedent's personal maintenance consumption allowance would be 26%, which is for a two-person family. On cross-examination, one defense attorney asked Oliver to compute the decedent's lost income using a 40% personal consumption rate. On further cross-examination, the other defense attorney asked Oliver to compute the decedent's lost income assuming at personal consumption rate of 67%. Thus, no matter which rate the jury accepted as accurate, whether it was the 26% rate, the 40% rate, or the 67% rate, the jury would have had to award something for net cash value. Instead, the jury awarded only funeral expenses. Thus, this Court found error. The Court stated, "It is incredible that the verdict ignored and did not respond favorably to this element of damages." Id. By finding such, this Court did not necessarily approve Oliver's first computation of 26% which took into consideration a two-person family. Rather, the Court merely stated that the verdict did not respond to the evidence which established that, at worst, the consumption rate was 67%.

Returning to the case at hand, the majority concludes that "the consumption rate is another factor which may be argued by the parties to the finder of fact in support of increasing or decreasing the presumption that the deceased child's income would have been equivalent to the national average." Majority Op. at 1279. Interestingly, neither of the parties have argued that consumption rate should not be argued by the parties to the fact finder. The parties have argued over whether the consumption rate should take into account hypothetical dependents. Shaffer does not address this question, and neither does the majority.

Furthermore, the majority refuses to disturb the chancellor's decision to credit David Channell's testimony regarding the personal consumption rate because, the majority concludes, the decision was supported by substantial evidence. However, [765 So.2d 1281] whether the consumption rate should take into account hypothetical dependents is a question of law, not a question of fact, which this Court should review de novo. McNeil v. Hester, 753 So.2d 1057, 1063 (Miss.2000) (citing Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990); Cole v. National Life Ins. Co., 549 So.2d 1301, 1303 (Miss.1989)).

For the foregoing reasons, I respectfully concur in part and dissent in part.

BANKS, P.J., AND COBB, J., JOIN THIS OPINION.

[1] The Administrators do not appear to agree with Greyhound's assertion that the Court of Appeals's interpretation of Miss.Code Ann. § 63-3-505 is unreasonable. Rather, the Administrators only argue that the Court has given reasonable interpretations to the statute in the past, and in the present case, because the bus driver had warning that the car was going to run the stop sign, the driver should have applied his brakes.

85 Cal.Rptr.2d 584 (1999)
72 Cal.App.4th 1006
Michael ARAMBULA, Plaintiff and Appellant,
v.
Phyllis Hauser WELLS, Defendant and Respondent.
Diane Arambula, Plaintiff and Appellant,
v.
Phyllis Hauser Wells, Defendant and Respondent.

Nos. G023337, G023921.
Court of Appeal, Fourth District, Division Three.

June 8, 1999.
Review Denied September 1, 1999.
585*585 Law Offices of Walter Greene, Jr., and Walter Greene, Jr., Laguna Beach, for Plaintiffs and Appellants.

Gilbert, Kelly, Crowley & Jennett, Albert P. Di Rocco, Jr., Jennifer M. Damon and Warren S. Fujimoto, Orange, for Defendant and Respondent.

Certified for Partial Publication.[*]

OPINION

CROSBY, J.

Charity begins at home. And there it should stay, assuming the donor so intended. To promote the charitable impulse, we apply the collateral source rule to gratuitous payments (including moneys to cover lost wages) by family or friends to assist tort victims through difficult times.

I

In June 1996, Michael Arambula was injured in a rear-end automobile accident caused by Phyllis Wells. Arambula was employed as a field supervisor in a family-owned company in which his brother owned 70 percent of the stock, his parents owned 15 percent, and he owned 15 percent. Despite missing work because of his injuries, he continued to receive his $2,800 weekly salary. He testified his brother “wished” to be reimbursed, but he had not promised to do so.

Arambula sued Wells for negligence. His claim for damages included loss of earnings during the period of his disability. His wife, Diane Arambula, sued for loss of consortium.

Wells admitted fault, and the case went to trial on causation and damages alone. Arambula contended he sustained a severe brain injury as a result of the accident. Wells denied this.

At the start of trial, Wells moved in limine to exclude all evidence and testimony regarding Arambula’s lost wages claim of approximately $50,000. Her attorney, relying on dicta in a footnote in Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6, fn. 5, 84 Cal.Rptr. 173, 465 P.2d 61, argued, “Plaintiff is not receiving payment by means 586*586 of disability insurance, pension or from utilizing [] sick time or vacation time. Further, plaintiff has failed to provide any documentation or demand that the monies received from his employer will be required to be reimbursed.”

The judge agreed. Based on Helfend, he instructed the jury not to award damages for lost earnings “because his employer paid for the time he was off without any requirement to do so and there was no agreement by plaintiff to refund same.”

The jury awarded $54,334 to Arambula, but nothing to his wife. Both appeal.

II

Under the collateral source rule, plaintiffs in personal injury actions can still recover full damages even though they already have received compensation for their injuries from such “collateral sources” as medical insurance. (Pacific Gas & Electric Co. v. Superior Court (1994) 28 Cal.App.4th 174, 176, 33 Cal.Rptr.2d 522.) The idea is that tortfeasors should not recover a windfall from the thrift and foresight of persons who have actually or constructively secured insurance, pension or disability benefits to provide for themselves and their families. A contrary rule, it is feared, would misallocate liability for tort-caused losses and discourage people from obtaining benefits from independent collateral sources. (Helfend v. Southern Cal. Rapid Transit Dist., supra, 2 Cal.3d at pp. 13-14, 84 Cal.Rptr. 173, 465 P.2d 61.)

Helfend is the leading case. The court rejected defense efforts to introduce evidence that about 80 percent of an injured motorist’s medical bills had been paid by his Blue Cross insurance carrier. Applying a benefit of the bargain rationale, the Supreme Court allowed the motorist to receive the advantage of his investment of “years of insurance premiums to assure his medical care.” It stated ”[t]he tortfeasor should not garner the benefits of his victim’s providence.” (Id. at pp. 9-10, 84 Cal.Rptr. 173, 465 P.2d 61.)[1]

Helfend on its face says nothing about gratuitous wage payments. Wells, however, cited Helfend to convince the trial court to limit the collateral hoiosource rule to situations where plaintiffs incurred an expense, obligation or liability in obtaining the services for which they seek compensation. According to Wells, Helfend is “replete with indications that the California Supreme Court does not intend for the collateral source rule to apply to gratuitous payments and services.”

Wells specifically relied on footnote 5 in Helfend where the court expounded (at some length) about the collateral source rule as interpreted in New York: “The New York Court of Appeals has, for example, quite reasonably held that an injured physician may not recover from a tort feasor for the value of medical and nursing care rendered gratuitously as a matter of professional courtesy. [Citation]. The doctor owed at least a moral obligation to render gratuitous services in return, if ever required; but he had neither paid premiums for the services under some form of insurance coverage nor manifested any indication that he would endeavor to repay those who had given him assistance. Thus this situation differs from that in which friends and relatives render assistance to the injured plaintiff with the expectation of repayment out of any tort recovery; in that case, the rule has been applied.” (Id. at p. 6, fn. 5, 84 Cal.Rptr. 173, 465 P.2d 61, italics added.) Wells contends footnote 5 created a new rule of law in California, creating an 587*587 exception for gratuitous benefits where the injured party has incurred no expense, obligation or liability.

We disagree. It is arguable whether footnote 5 even rises to the level of dicta. Helfend itself did not see it that way. To the contrary, the court cautioned, “We expressly do not consider or determine the appropriateness of the rule’s application in the myriad of possible situations which we have not discussed or which are not presented by the facts of this case.” (2 Cal.3d at p. 6, fn. 3, 84 Cal.Rptr. 173, 465 P.2d 61.)

We take Helfend at its word. Not only do we consider its language at face value, but we construe it in the light of its facts and the issues raised. (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1301, 77 Cal. Rptr.2d 296.) While we do not take lightly any of the Supreme Court’s statements, we reasonably construe them in the context of the thoroughness of the court’s analysis and in light of its prior expressions on the same subject. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169, 78 Cal. Rptr.2d 819; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 947, p. 989.) There are five specific reasons why footnote five fails to pass these tests.

First, there is the matter of existing California law (prior to Helfend), which made no special distinction for purely gratuitous collateral benefits. In Tremeroli v. Austin Trailer Equip. Co. (1951) 102 Cal.App.2d 464, 482, 227 P.2d 923, the court stated, “The same rule [as to collateral sources] seems to apply to wages paid an injured person by the employer. The injured employee may still recover the full amount of such wages from the wrongdoer.” The Supreme Court repeated similar language in Fifield Manor v. Finston (1960) 54 Cal.2d 632, 637, 7 Cal.Rptr. 377, 354 P.2d 1073: “The fact that either under contract or gratuitously such treatment has been paid for by another does not defeat the cause of action of the injured party to recover the reasonable value of such treatment from the tortfeasor.” (Italics added.) If the Supreme Court desired to throw into doubt such long-established pronouncements (including its own decision in Fifield Manor), we believe it would have done so more directly than through footnote 5’s oblique references to New York decisional law.

Second, no subsequent appellate opinion has construed footnote 5 in the highly expansive manner suggested by Wells. To the contrary, several post-Helfend decisions have allowed plaintiffs to recover the costs of gratuitous medical care as an element of their damages even without any contractual right to reimbursement. (Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 644, 246 Cal.Rptr. 192 [parents who cared for minor child can recover special damages for reasonable costs of such care based on prevailing rates for home care nurses, even though services were rendered “without an agreement or expectation of payment”]; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 662, 151 Cal.Rptr. 399 [same with respect to wife who provided 24-hour-a-day attendant care to her injured husband: “Insofar as gratuities are concerned, the rule appears to be in keeping with the collateral source rule rationale.”]; see also Pacific Gas & Electric Co. v. Superior Court, supra, 28 Cal.App.4th at p. 180, 33 Cal.Rptr.2d 522 [”[I]n California even [gratuitous] benefits are subject to the collateral source rule.”].) Wells’s proposal would create a conflict in the law with the case authority Hanif, Rodriguez and Pacific Gas & Electric Co.

Third, a majority of jurisdictions and many commentators are in accord. (See 4 Harper, James & Gray, The Law of Torts (2d ed.1986) § 25.22, p. 661 [“Most of the cases do not subtract a gift from tort damages.”]; Johns, Cal. Damages (5th ed.1996) § 1.66, p. 1-80 [“The right of the injured person to recover damages for loss of earnings or impairment of earning capacity is not affected by the fact the employer may have continued to pay the injured person while he or she was disabled…. This is the weight of authority in other states”.])[2]

588*588 In Montgomery Ward & Co., Inc. v. Anderson (1998) 334 Ark. 561, 976 S.W.2d 382, a hospital partially forgave a patient’s medical bills. The court held the patient was entitled to recover compensation for the full amount of the harm inflicted upon her, notwithstanding the discount, stating “There is no evidence of record showing that [defendant] had anything to do with procuring the discount of [plaintiffs] bill by [the hospital]. The rationale of the rule favors her, just as it would had she been compensated by insurance for which she had arranged.” (976 S.W.2d at p. 384.)

Fourth, public policy concerns weigh heavily in favor of application of the collateral source rule to gratuitous payments and services. Just as the Supreme Court in Helfend found the rule “expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities” (Helfend v. Southern Cal. Rapid Transit Dist, supra, 2 Cal.3d at p. 10, 84 Cal.Rptr. 173, 465 P.2d 61), so too we adhere to the rule to promote policy concerns favoring private charitable assistance. Indeed, until recent times, family assistance has been the primary means of coping with a tragedy in this country. Were we to permit a tortfeasor to mitigate damages because of a third party’s charitable gift, the plaintiff would be in a worse position than had nothing been done. Why would a family member (or a stranger) freely give of his or her money or time if the wrongdoer would ultimately reap the benefits of such generosity?

The concept of charity is embedded in basic notions of civic virtue, finding expression in legislation ranging from tax law to wills and estates and many others. When called upon to construe private humanitarianism, “courts do not now adopt an antagonistic spirit toward [a donor’s] charitable intent for it is the rule that where doubt exists, a gift must be interpreted in favor of a charity.” (Estate of Heil (1989) 210 Cal. App.3d 1503, 1510, 259 Cal.Rptr. 28; see also Estate of Tarrant (1951) 38 Cal.2d 42, 46, 237 P.2d 505 [“It is the policy of the law to favor gifts for charitable purposes ….”].)[3]

This is more than “do-gooderism”; the state’s own self-interest is involved as well. To the extent that private generosity steps to the fore, the impact on the state is lightened “by rendering beneficences which the state would otherwise be obliged to furnish or indirectly further the interests of the state by the public benefit they promote.” (Estate of Fleming (1948) 31 Cal.2d 514, 519, 190 P.2d 611.)

Charitable contributions are primarily motivated by the intended use to which donations are put. Under these circumstances, we logically turn to the intent of the donors. Whom did they intend to help when they gratuitously agreed to cover lost wages? The person who caused the accident? Or the victim? We doubt such gifts would continue if, notwithstanding a donor’s desire to aid the 589*589 injured, the person who caused the injury ultimately stood to gain a windfall. Donors should not have to consult with a lawyer to make sure their largesse is not hijacked by the tortfeasor.

We do not necessarily consider a tort recovery made after gratuitous benefits are received as a windfall to the plaintiff, although it clearly might be a windfall to the defendant. As one leading treatise puts it, “Compensation in these cases is not double in any true sense. It might be condemned under a system that would give to each only according to his need, but even the Marxists have put aside this part of their philosophy for their nirvana.” (4 Harper, James & Gray, The Law of Torts, supra, § 25.22 at p. 661.) If a generous person chooses to pay the wages of someone who has been injured, intending to add the gift to the latter’s compensation, “there seems to be ho good reason for denying effect to such intention or for diverting it to another beneficiary, whether that other is a wrongdoer or not— In these cases of private generosity the best solution seems to be a rule of thumb that would give greatest scope to the donor’s generosity and to the adjustment of moral obligations within the more or less intimate relationships that usually bring such generosity into play. The gift should be disregarded in assessing damages.” (Id. at pp. 661-663.)

Even without an ironclad requirement of reimbursement, the plaintiff may be motivated to repay the donor from any tort recovery, or, inspired by example, to similar acts of generosity on the notion that one good act leads to another. Such reimbursement would avoid any prospects of a double recovery, as if there ever could be a double recovery where pain and suffering is concerned. Moreover, as Helfend noted, the injured victim may not have been made whole because generally “plaintiffs attorney will receive a large portion of the plaintiffs recovery in contingent fees…. The collateral source rule partially serves to compensate for the attorney’s share and does not actually render `double recovery’ for the plaintiff.” (Helfend v. Southern Cal Rapid Transit Dist., supra, 2 Cal.3d at p. 12, 84 Cal.Rptr. 173, 465 P.2d 61.)

The rationale of the collateral source rule thus favors sheltering gratuitous gifts of money or services intended to benefit tort victims, just as it favors insurance payments from coverage they had arranged. No reason exists in these circumstances to confer a bonanza upon the party causing the injury. As one court noted nearly a century ago in connection with an employer’s voluntary wage payment, ”[I]f time has been lost as the result of a tort, sound sense, common justice, and, it may be, public policy would demand that the tortfeasor be prohibited from making a defense founded upon the proposition… that some third person, not only not in sympathy with the wrongdoer, but despising him and his act, has, from some worthy motive, paid to the injured person an amount which, if it had come from the wrongdoer, would have equaled the damages which would have been assessed against him.” (Nashville, C. & St. L.Ry. v. Miller (1904) 120 Ga. 453, 47 S.E. 959, 47 S.E. 959, 960.)

III

A

While a gift is presumptively intended for the benefit of the donee, the presumption should be a rebuttable one. We can posit examples where a wrongdoer’s family or friends might pay the victim’s bills out of a sense of moral obligation or atonement. Public policy encourages such expiation. Under these circumstances the tortfeasor may well be entitled to an offset to effectuate the donors’ intent and to avoid a double recovery. Put another way, such sources might not be considered as “wholly independent” of the tortfeasor. (See, e.g., Kardly v. State Farm Mut. Auto. Ins. Co. (1989) 207 Cal.App.3d 479, 485, 255 Cal.Rptr. 40.)

We also do not decide whether the collateral source rule extends to payments from a public source.[4] The question of gratuitous 590*590 public benefits is not at issue here and invokes a host of other concerns, which must be considered in light of their specific factual contexts. (Helfend v. Southern Cal. Rapid Transit Dist., supra, 2 Cal.3d at p. 9, 84 Cal.Rptr. 173, 465 P.2d 61.)

B

The collateral source rule operates both as a substantive rule of damages and as a rule of evidence. As a rule of evidence, it precludes the introduction of evidence of the plaintiff being compensated by a collateral source unless there is a “persuasive showing” that such evidence is of “substantial probative value” for purposes other than reducing damages. (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 733, 94 Cal.Rptr. 623, 484 P.2d 599; see also Blake v. E. Thompson Petroleum Repair Co. (1985) 170 Cal.App.3d 823, 830-832, 216 Cal.Rptr. 568.)[5]

We do not resolve such issues of admissibility here, but leave them to the sound discretion of the trial judge on remand. (Hrnjak, supra, 4 Cal.3d at pp. 732-734, 94 Cal.Rptr. 623, 484 P.2d 599.) We note, however, our decision does not automatically bar evidence that Arambula’s wages were paid by his brother during his period of disability. For example, such evidence may be admissible, in the court’s reasonable discretion and subject to a limiting instruction, to impeach his claimed inability to work. Evidence of actual wage payments may be persuasive to show that no time was lost, the employee actually performed substantial services during the period of disability, or had a motive to malinger. (See Corsetti v. Stone Co. (1985) 396 Mass. 1, 483 N.E.2d 793, 802 [evidence of collateral source income relevant to show employee had motive other than physical disability not to work].)

In Pensak v. Peerless Oil Co. (1933) 311 Pa. 207, 210, 166 A. 792, an employee received salary payments (as a supposed gift) from his father and brother (who were co-owners of the business) during the time of his incapacity. But the court distinguished between making a claim of gift and proving it: “Characterizing as a gift the money paid to him does not make it so. To permit a recovery of money under the guise of wages lost would, with the facts as they here appear, open a wide door to misrepresentation and fraud in this class of cases.”

IV-VI[**]

DISPOSITION

The defense verdict on Diane Arambula’s loss of consortium claim in G023337 is affirmed. As to Michael Arambula, the cause in G023337 is remanded to the trial court for a limited new trial to determine the amount of damages for lost wages (if any) legally caused by defendant’s negligence. The judgment for damages in his favor is otherwise affirmed.

The appeal in G023921 is dismissed. In the interest of justice, the parties are to bear their own costs in these appeals.

SILLS, P.J., and RYLAARSDAM, J., concur.

[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts IV, V and VI.

[1] The collateral source rule also recognizes the inadequacies of damage awards for personal injuries. That is because ”[l]egal `compensation’ for personal injuries does not actually compensate. Not many people would sell an arm for the average or even the maximum amount that juries award for loss of an arm. Moreover the injured person seldom gets the compensation he `recovers,’ for a substantial attorney’s fee usually comes out of it. The Rule helps to remedy these problems inherent in compensating the tort victim.” (Note, California’s Collateral Source Rule and Plaintiff’s Receipt of Uninsured Motorist Benefits, 37 Hastings L.J. 667, 672.) Since collateral sources only cover economic damages like medical costs and lost earnings, there is no possibility of a double recovery for intangibles like pain and suffering “which can be translated into monetary loss only with great difficulty.” (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 893, 103 Cal.Rptr. 856, 500 P.2d 880.) Rather than overcompensating a plaintiff, the collateral source rule “partially provides a somewhat closer approximation to full compensation for his injuries.” (Helfend, supra, 2 Cal.3d at p. 13, 84 Cal.Rptr. 173, 465 P.2d 61.)

[2] See also Annot. (1967) 7 A.L.R.3d 516, 519, § 2: “Where the plaintiff during the period of his disability receives salary or other compensation from his employer, the rule … in most jurisdictions is that the person whose negligence caused the injury to plaintiff is not entitled to mitigate or reduce damages in whole or in part by the amount of salary or wages received by plaintiff from his employer during the period of disability, whether the payments were pure gratuities or paid pursuant to a contractual obligation…. The reason advanced in support of the majority rule is that if anyone should profit by the payments it should be the injured employee rather than the tortfeasor.”

One commentator, however, rates the issue a toss-up: “The application of the collateral source rule to benefits provided to the plaintiff as a gratuity is not totally clear…. While the treatment of unconditional gratuities may be unclear, the collateral source rule clearly applies in cases when the plaintiff would be obligated to repay what would otherwise be a gratuity if the plaintiff becomes able to do so.” (4 Levy, Golden & Sacks Cal. Torts (1999) § 53.20⁸, pp. 53-23 to 53-24.)

[3] In City of Palm Springs v. Living Desert Reserve (1999) 70 Cal.App.4th 613, 82 Cal.Rptr.2d 859, the court refused to allow a city to use the power of eminent domain to renege on its promise to use a gift of 30 acres of donated land as a desert wildlife preserve without compensating the holder of the reversionary interest. (The city wanted to build another golf course instead.) The court acted in part because “if a public entity which had accepted a gift of property subject to a condition limiting the use of that property were permitted to avoid the force of the donor’s restriction, donors would be discouraged from making such gifts in the future.” (Id. at p. 628, 82 Cal.Rptr.2d 859.) As in City of Palm Springs, we too are concerned that application of collateral source rule to charitable gifts to tort victims may discourage donors from making such gifts.

[4] See e.g., Washington by Washington v. Barnes Hospital (Mo.1995) 897 S.W.2d 611 (collateral source rule does not apply to free governmental benefits previously received by plaintiff); 4 Harper, James & Gray, The Law of Torts, supra, § 25.22 at pp. 663-664 (”[u]nless such [a contrary legislative] intent is made fairly clear, however, it seems reasonable to suppose that statutory benefits and free services furnished by government to needy classes of people are meant simply to make sure certain of their needs will be fulfilled and not to confer an additional bounty on the recipient”); but see Ensor v. Wilson (Ala. 1987) 519 So.2d 1244 (collateral source rule applies to future special education benefits by governmental entity because of uncertainty of their continued existence).

[5] The Legislature, as part of the Medical Injury Compensation Reform Act of 1975 (MICRA), has abrogated the collateral source rule as a rule of evidence in medical malpractice cases. MICRA allows defendants to introduce evidence the plaintiffs had received collateral source benefits, and it prohibits “collateral sources” from obtaining reimbursement from malpractice defendants. (Civ.Code, § 3333.1.)

[**] See footnote *, ante.

[582] [583] John P. Caudle, Kincaid, Gianunzio, Caudle & Hubert, Oakland, Cal., for plaintiffs.

John F. Barg, Asst. U. S. Atty., San Francisco, Cal., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OF OPINION

WILLIAM W SCHWARZER, District Judge.

This is an action for personal injury brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. The Court has jurisdiction under 28 U.S.C. § 1346(b). The law of California, the place where the complained of acts occurred, controls. Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); United States v. English, 521 F.2d 63, 65 (9th Cir. 1975).

Plaintiff William James complains that defendant negligently failed to inform him of the discovery of a suspected tumor in the course of a pre-employment physical at the Mare Island Naval Shipyard in December, 1976. James claims that as a result he was deprived of a measurable chance of an increased life expectancy through early removal or treatment of the tumor, which was inoperable when discovered almost two years later. Plaintiff Kathryn James, his wife, claims a consequential loss of income and consortium.

The Court has heretofore granted partial summary judgment to plaintiffs on the issue of negligence. A trial was held to the Court on the proximate cause and damage issues on December 26, 1979. The following shall constitute the Court's findings of fact and conclusions of law on all issues.

FACTS

In December, 1976, William James, then 38 years old, applied for a position as marine machinist at the Mare Island Naval Shipyard. As a condition of employment, he was required to take a physical examination at the Mare Island dispensary. A chest X-ray taken in the course of the examination was routinely sent to Oak Knoll Naval Hospital for review. The reviewing radiologist at Oak Knoll noted an abnormality "in the right para tracheal region, in which there is a 3 × 2 cm. soft tissue density." He expressed his concern about a possible cancer and requested further chest X-rays for review and a possible workup. Through a clerical error, both the December, 1976, X-ray and the radiologist's report were inadvertently filed without being seen by the examining physician at Mare Island. James was not informed of the abnormality appearing on his chest X-ray and was hired by the Mare Island shipyard. He worked there until October, 1978, when he began to experience chest pains, shortness of breath and coughing, and sought treatment from his personal physician.

The X-rays taken at that time revealed a large mass in James's right lung. Exploratory surgery disclosed a large cell undifferentiated carcinoma located in the lung and the mediastinum, close to the trachea (windpipe). The mediastinum is the area between the lungs, extending from the neck to the diaphragm, in which are located the trachea and esophagus, major arteries and veins and the heart. It is undisputed that a cancer which has invaded the mediastinum is inoperable.

James received radiation therapy in November and December, 1978. At the time of trial, the tumor had shrunk in size so as to be invisible on X-rays. The cancer had gone into remission and there was no direct evidence that it had metastasized (i. e., spread). James had regained the weight he had previously lost and was physically able to return to work.

[584] NEGLIGENCE

At the threshold, we confront the issue whether the United States owed a duty of care to James in connection with the preemployment physical examination. The government argues that the absence of a physician-patient relationship here precludes such a duty.

California law does not employ such a categorical test. Instead, it proceeds from the principle that all persons owe a duty of ordinary care to prevent others from being injured as a result of their conduct; any departure from this principle involves a balancing of several considerations, such as the foreseeability of harm to plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the conduct and the injury, the moral blame attached to defendant's conduct, the policy of preventing future harm, the relative burden on the parties, and the availability of insurance. Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3, 6 (1977).

In this case, these considerations on balance favor plaintiffs. It was foreseeable that an inadvertent failure to advise plaintiffs of the apparent tumor disclosed by the X-ray would cause harm to James and some harm did in fact result. Policy considerations favoring the imposition of the consequences of negligence on the party best able to prevent it, and the relative burden on the parties support the imposition of a duty here, even in the absence of moral blameworthiness.

While the court in Keene v. Wiggins imposed no duty on the physician under the facts of that case, those facts are distinguishable. Plaintiff there was a workers' compensation claimant who allegedly had relied to his detriment on the report of the carrier's examining physician that no surgery was needed. The court concluded that the physician owed no duty to plaintiff where the physician had been employed by the carrier to rate the injury, stood in an adversary relationship to plaintiff, and had no reason to expect that plaintiff would rely on his report.

A case closely in point here is Coffee v. McDonnell Douglas Corp., 8 Cal.3d 551, 105 Cal.Rptr. 358, 503 P.2d 1366 (1972). There plaintiff had taken the pre-employment physical examination required by defendant, was told that he had passed it, and was employed. Seven months later he began to suffer symptoms which led to a diagnosis of multiple myeloma (cancer of the bone marrow). A blood sample taken during the physical examination had been sent to an independent laboratory whose report, when received by defendant, had been filed without being seen by the examining physicians. The report showed an abnormally high sedimentation rate which, had it been known to the physicians, would have led them to make further inquiries. The California Supreme Court held that although an employer generally owes no duty to prospective employees to ascertain whether they are physically fit for the job they seek, where he assumes that duty he is liable if he performs it negligently. The court agreed with the defendant employer that it was under no duty to discover diseased conditions, but held that it may nevertheless be held liable for not discovering a disease if, in light of the circumstances, it failed to conduct the examination with due care. The inadvertent filing by defendant of the required blood test report before it was seen by the examining physicians was a failure on the employer's part to exercise due care. The Coffee case was followed in Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974), decided under Maryland law. Betesh was rejected by the army without explanation following his pre-induction physical. He had had a prior knee injury and had with him at the examination a note from a private physician to avoid vigorous physical activity. Unbeknownst to him, however, an X-ray taken during the examination showed an abnormality which, as noted in the official file, was the ground for his rejection, but was never disclosed. Six months later Betesh accidentally discovered this notation in the file and promptly saw his doctor who diagnosed Hodgkin's disease (cancer of the lymph glands). The court [585] concluded that the government had breached its duty in failing to disclose to Betesh the abnormal condition shown on the X-rays.

The reasoning of the Coffee decision is dispositive here. Defendant had no duty to discover James's tumor. Having made a chest X-ray an essential part of the preemployment examination to determine an applicant's physical fitness, however, defendant failed to use due care when, through a clerical error, the report on the X-ray was not brought to the attention of the examining physician.^[1]

PROXIMATE CAUSE

Plaintiffs must prove by a preponderance of the evidence that the injury for which they seek damages was proximately caused by defendant's breach of the duty it owed plaintiffs. Cal.Civ.Code, § 3333. In a case such as the one at bench, where the diseased condition is the result of other causes, the evidence must show that defendant's conduct placed plaintiffs in a position worse than that in which they would otherwise have been. Deckard v. Sorenson, 177 Cal.App.2d 305, 2 Cal.Rptr. 121 (1960). Plaintiffs need not prove causation conclusively, however, or even to a certainty; it is sufficient if a preponderance of the evidence establishes a reasonable probability that defendant's negligence caused plaintiffs to be worse off. Burford v. Baker, 53 Cal.App.2d 301, 306, 127 P.2d 941 (1942); Contreras v. Gummig, 54 Cal.App.2d 421, 430-31, 129 P.2d 18 (1942); Keen v. Prisinzano, 23 Cal.App.3d 275, 100 Cal.Rptr. 82 (1972). Evidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment increased the need for or lessened the effectiveness of treatment is sufficient to establish proximate cause. Cullum v. Seifer, 1 Cal.App.3d 20, 81 Cal. Rptr. 381, 385 (1969); Carrasco v. Bankoff, 220 Cal.App.2d 230, 33 Cal.Rptr. 673, 680 (1963). See also, Hicks v. United States, 368 F.2d 626 (4th Cir. 1966) (proximate cause established by proof that negligence destroyed "reasonable possibility" of rescue). Notwithstanding some seeming semantic variations in the cases, it is clear enough that once plaintiffs have proved defendant's negligence, evidence which shows the causal relationship to the claimed injury to have a reasonable medical basis, as opposed to being mere conjecture, will suffice. Cullum v. Seifer, supra, 81 Cal. Rptr. at 385. In this case, analysis of the proximate cause issue must focus on a range of possible consequences of defendant's negligence.

James contends that defendant's negligent failure to disclose the 1976 X-ray findings caused him to lose a statistical 10-15 percent chance of survival for five years. The expert witnesses of both sides agreed, however, that this statistical chance of survival is premised on the tumor being resectable (i. e., operable). They further agreed that once the tumor has invaded the mediastinum it becomes inoperable.^[2]

The single X-ray taken in December, 1976, which affords only an incomplete two dimensional view of the tumor, is insufficient to support a definitive judgment on whether the tumor at the time had invaded the mediastinum. Both of plaintiffs' expert witnesses were of the opinion, however, that more probably than not, the tumor was in the mediastinum at the time. Defendant's [586] expert agreed, and further believed that the tumor's location in the upper right bronchus, immediately adjacent to the trachea, would in any event have made surgery infeasible. The Court therefore concludes that plaintiffs have failed to sustain their burden of proving to a reasonable certainty that the tumor was operable in 1976, a condition to finding that James had a 10-15 percent chance of surviving five years.

Plaintiffs contend that defendant cannot contest the measure of James's chances for survival, but must bear any uncertainty in proof which its negligence has caused. But existing authority for such a proposition requires plaintiffs to prove, at a minimum, that defendant actually destroyed a substantial possibility of survival, which they have failed to do in this case. Hicks v. United States, supra, 368 F.2d at 632. Nor can plaintiffs rely on Cullum v. Seifer, supra, 81 Cal.Rptr. at 385, in which the court recognized that the uncertainty with respect to proof was caused by defendant's negligence and allowed an inference, in the absence of contrary evidence, that plaintiff's condition fell within that group where prompt treatment would have improved her prognosis. Here, plaintiffs' own experts testified that the tumor was probably not resectable in 1976 and therefore any inference of operability would be improper.

Plaintiffs' failure to establish the premise for the loss of a statistically measurable chance of survival does not, however, rule out recovery. An individual may be compensated for any aggravation of his injury or shortening of his lifespan proximately caused by the defendant's negligence, even though other factors contributed to or caused the initial condition. Coffee v. McDonnell Douglas Corp., supra, 105 Cal. Rptr. at 361, 503 P.2d 1366, (had multiple myeloma, an incurable disease, been diagnosed earlier the plaintiff would not have suffered the extent of the injuries he did); Armstrong v. Svoboda, 240 Cal.App.2d 472, 49 Cal.Rptr. 701, 704 (1966) (earlier hospitalization would have minimized plaintiff's heart damage); Burford v. Baker, supra, 53 Cal.App. at 307, 127 P.2d 941, (bone deformity would probably not have developed if early recognition of the condition had occurred). Plaintiff may demonstrate the benefit of earlier treatment in his case by relying on general theories of appropriate medical treatment. Keen v. Prisinzano, supra, 100 Cal.Rptr. at 85-86, (early use of the pinning method in treating fractured joints generally reduces the residual effects which plaintiff, who did not receive such treatment, exhibited at trial); Cullum v. Seifer, supra, 81 Cal.Rptr. at 385, (early treatment of lymphosarcoma — cancer affecting the lymphatic system — can generally isolate the disease in one place, reduce plaintiff's suffering, and improve the longterm prognosis); Carrasco v. Bankoff, supra, 33 Cal. Rptr. at 680, (better results are generally obtained in treating third degree burns by using skin grafts at an early stage of treatment).

Both sides' experts agreed that from a medical standpoint early treatment of cancer is preferable. The possibility that the tumor might have been operable in 1976 cannot be ruled out, even if plaintiff failed to establish it to a degree of certainty so as to bring into play statistically measurable chances of survival based on resection. James lost the benefit of that possibility, as well as the benefit of early radiation treatment which might have prevented or reduced the metastasis which, according to plaintiffs' experts, has probably occurred since 1976. The government's own expert stated that James's chance of survival would have been better had he first been treated in 1976 rather than 1978.

The government argues, in opposition, that James, having survived more than three years since the first discovery of the tumor, has already outlived the statistical forecast for ninety-nine percent of lung cancer cases.^[3] Thus, the government contends, [587] James could not reasonably claim to have been better off had a full diagnosis been made in December, 1976. This argument, however, is based on a misapplication of the survival statistics. The statistics are keyed to a survival interval from the time of the first definitive diagnosis of cancer. Speculation, even if reasonable, that James had lung cancer when the 1976 X-ray was taken is not a substitute for a definitive diagnosis. This point is driven home by the testimony of plaintiffs' witnesses that in 1976 the tumor may have been far less, and perhaps not at all undifferentiated (i. e., virulent). Plaintiffs' expert testified that there is a "high probability that the tumor shown by the 1976 X-ray was not an undifferentiated tumor, or if it was, it was significantly less undifferentiated than when diagnosed in October-November, 1978." He felt that if the tumor had been as undifferentiated in 1976 as it was in 1978, James would not have survived. James's treating physician expressed the same opinion. The government's expert did not contradict their opinions.

Inasmuch as the degree of undifferentiation of a tumor may increase over time, the government's attempt to apply survival statistics retroactively from a time when James's undiagnosed tumor may have been far less virulent is an unconvincing exercise. If indeed it was substantially less undifferentiated, James's survival would not necessarily place him so far off the curve that early treatment could not have conferred an additional benefit. Based on the tumor's size in 1978, plaintiffs' experts concluded that it had probably metastasized since 1976; earlier radiation treatment would have reduced its size and lowered the risk of metastasis.^[4]

The Court therefore finds and concludes that plaintiffs have sustained their burden of proving that James would have benefited from early treatment, i. e., that discovery and disclosure in 1976 would have offered at least a chance that the tumor could be successfully treated and, even if not cured, its growth arrested or slowed. As a proximate result of defendant's negligence, James was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. No matter how small that chance may have been — and its magnitude cannot be ascertained — no one can say that the chance of prolonging one's life or decreasing suffering is valueless. Accompanying this physical loss is the mental anguish from the awareness of this lost opportunity. Both are elements of damages for which James is entitled to compensation.

DAMAGES

The fact of proximately caused injury having been proved, damages may be recovered even if they are not susceptible to accurate measurement. Guntert v. City of Stockton, 55 Cal.App.3d 131, 126 Cal.Rptr. 690, 703 (1976), reh. den., 55 Cal.App.3d 131, 127 Cal.Rptr. 602. Although James's cancer is now in remission, the weight of the evidence is that it is almost certain to reappear in the not too distant future. Thus, for the reasons previously discussed, James is entitled to recover for the loss of the opportunity for earlier and possibly more effective treatment through the government's negligence. The Court finds that $35,000 represents reasonable compensation for this loss.

James also experienced mental suffering and anguish as a result of the government's negligence for the reasons discussed above. [588] Against this must be set off the psychological benefit from not having known of his cancer from December, 1976 until October, 1978. The Court finds that $25,000 represents reasonable compensation for this loss.

James is not entitled to recover lost earnings from the time he left his job in October, 1978 to the present. Although, as discussed above, timely diagnosis might have improved his subsequent condition, the proof is not sufficient to find that the government's negligence was a proximate cause (i. e., a substantial factor) in bringing about the condition which in October, 1978 required him to stop work.

Mrs. James is not entitled to damages for loss of support. Plaintiffs have failed to prove that defendant's negligence was the proximate cause of a measurable reduction in James's working life expectancy. Nor is she entitled to loss of consortium. To recover she would have to prove complete loss of consortium for a definite period of time, not merely the mental and emotional damages suffered as a result of injury to her spouse. See, Park v. Standard Chem Way Co., 60 Cal.App.3d 47, 131 Cal. Rptr. 338 (1976); Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 (1974). In this case, moreover, the existence of the terminal illness appears to be the dominant cause of the impairment of the marital relationship, the impact of the government's negligence being relatively insignificant.

For the reasons stated, plaintiff William James is entitled to judgment in the amount of $60,000, plus costs.

IT IS SO ORDERED.

[1] The government also argues that the failure to inform James of the abnormal X-ray falls within the misrepresentation exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(h). The gravamen of the action, however, is not a false statement but the negligent performance of operational duties. Betesh v. United States, supra, 400 F.Supp. at 241, note 2; Ramirez v. United States, 567 F.2d 854 (9th Cir. 1977) (en banc). Compare, Hoesl v. United States, 451 F.Supp. 1170 (N.D.Cal.1978) (claim against psychiatrist who, following preemployment examination of plaintiff, communicated false diagnosis of mental illness to plaintiff's supervisor fell within misrepresentation exception).

[2] In 1978 James's tumor was diagnosed as being a large or squamous cell type, and not a small cell tumor. In all probability, it would have been of the same type in 1976. Unlike small cell tumors, large or squamous cell tumors, depending on their location, are operable. Thus, resection could not have been ruled out by reason of the cell type involved.

[3] The testimony indicates that only five percent of all lung cancer cases survive as long as five years from diagnosis, nearly all of these being operable cases. A typical patient with inoperable lung cancer has an eight percent chance of surviving fifteen months with radiation treatments. Once lung cancer has penetrated into the mediastinum, the chances of survival are less than two percent.

[4] Against this evidence must be weighed the opinion of the government's expert that radiation therapy seriously degrades the body's natural immune system. Early treatment commencing in 1977 would have adversely affected his natural ability to combat the cancer during the following twenty-one months during which he did successfully combat it. This consideration, while entitled to weight, is not decisive. As the witness himself stated, although one can "wonder whether Mr. James was not fortunate in not receiving early treatment", his chance of survival would have been better had he first been treated in 1976 rather than 1978.

[402] S.M. Chris Franzblau argued the cause for appellants (Franzblau & Falkin, attorneys).

Jeffrey A. Peck argued the cause for respondents (Shanley & Fisher, attorneys; Jeffrey A. Peck and Stephen R. Long, on the brief).

The opinion of the Court was delivered by CLIFFORD, J.

In this medical malpractice case the trial court granted defendants' motion for judgment at the conclusion of plaintiffs' case because there was no proof of any damages proximately resulting from the defendant doctor's negligence. See R. 4:40-1. The Appellate Division affirmed, in an unreported opinion. We granted certification, 91 N.J. 523 (1982), and now reverse.

I

Because the trial court granted a judgment at the conclusion of plaintiff's^[2] case, we treat plaintiff's proofs as uncontradicted, both as to liability and damages. See R. 4:37-2(b); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Those proofs demonstrate that plaintiff first came under the care of defendant, Dr. Kenneth Dollinger, a physician specializing in obstetrics and gynecology, in about 1973. In March 1977 Mrs. Evers made an appointment for an examination by Dr. Dollinger because of her concern over a "very tiny" lump that she had felt in her right breast. Plaintiff told defendant about the lump and the pain associated with it. The doctor did a "complete examination" and told her it revealed "nothing," to "stop worrying and go home and relax." However, during the succeeding seven months plaintiff experienced worsening pain and noticed an increase in the size [403] of the lump, so that by October 1977 it was about four times as large as it had been in March. In addition she noticed a "little sorelike type of thing" on her breast, with some bleeding in the area.

With mounting apprehension Mrs. Evers sought another appointment with Dr. Dollinger around the middle of October. Because he was unavailable, his partner, Dr. Ladocsi, examined plaintiff. Mrs. Evers told him about the lump and the bleeding sore. Dr. Ladocsi determined that the sore was an abscess, took a culture of it, and advised plaintiff to await the culture results before seeking a biopsy for the lump because the lump might disappear once the abscess had resolved.

Although the culture results proved "negative for infection," Mrs. Evers' fears were not allayed, so she consulted Dr. Angelo DePalo, a physician associated with Memorial Sloan Kettering Cancer Center in New York. When he examined plaintiff on October 26, 1977, Dr. DePalo discovered an infected cyst in the right nipple area as well as a mass above it. He ordered a mammogram, the results of which raised a suspicion of cancer, whereupon plaintiff was admitted to Sloan Kettering where she underwent a right extended mastectomy on October 31, 1977. A 1.5 centimeter cancerous growth was removed. The pathologist's diagnosis was of infiltrating ductal carcinoma of the right breast. Laboratory studies, x-rays and blood tests indicated that the cancer had not yet spread to any distant sites, and all lymph nodes were negative for metastasis.

As of the time of trial in May 1981 Mrs. Evers had taken no medication and had received neither chemotherapy nor radiotherapy, nor had she experienced any recurrence of the cancer. While plaintiff's appeal was pending determination in this Court, however, we were informed, through motion papers (see supra n. 1, at 399) that Dr. DePalo has now determined that plaintiff has experienced "distant spread of cancer from the original breast cancer * * * [,which] had metastasized"; that he found "breast cancer cells * * * in the lung"; that "Mrs. Evers [404] * * * is faced with a terminal illness" and is "under psychiatric care"; and that she recently underwent surgery.

II

Plaintiff instituted this action in May 1979, charging that as a result of defendant's failure to have made an accurate diagnosis and to have rendered proper treatment, her "ailment and condition became aggravated and worsened and she suffered great pain and mental anguish and will continue to do so" and her "physical and mental health were severely impaired * * *." The specific allegation of malpractice revolves about defendant's failure to follow the March 1977 examination with a subsequent examination. The claim is not that absent the seven months delay in diagnosis the mastectomy would not have been required. Rather, it is that the delay itself caused both physical and emotional injury, as to both of which there was proof or offers of proof; and further that the delay enhanced the risk that the cancer would recur, requiring additional hospital and medical care — a grave and threatening circumstance that, as we now learn, plaintiff is prepared to prove has come to pass.

In support of these allegations plaintiff established at the trial, through her expert pathologist, Dr. Michael Janis, that the growth removed from Mrs. Evers' breast in October 1977 was malignant and that "for sure" it had been present in the breast in March. His testimony likewise permitted the reasonable inference that the tumor's size increased between the time of Dr. Dollinger's first examination and the subsequent surgery. Further, Dr. Janis concluded that plaintiff was suffering from infiltrating ductal carcinoma, a form of cancer that infiltrates or spreads into the ductal tissue beyond the site of the original tumor.

Finally, in the course of an extended colloquy out of the jury's presence, Dr. Janis explained a significant statistical phenomenon: that of those patients who have the type of breast cancer from which Mrs. Evers suffered, one out of every four will [405] experience a recurrence of the disease. Whereas it is impossible to forecast which patients will be stricken, the statistical fact is that it will be one in four. This statistical risk of 25% is applicable to patients who had been accurately and promptly diagnosed and treated. Dr. Janis asserted that if there were a seven months delay, as was here the case, there would be "more of a chance" that the patient would fall into the 25% category.

To much the same effect was a report, marked for identification, of plaintiff's examining physician, Dr. Sam Lan. The report was supplied to defense counsel as part of pretrial discovery, R. 4:17-4(e). In addition to establishing defendant's deviation from accepted standards of medical care, Dr. Lan was prepared to testify that

[a]ssuming the presence of a clinically palpable lump as claimed by the patient at her initial office visit, it is my opinion that the chances of a distant spread of the cancer was increased as a result of the delay of 7 months between the time the patient first saw Dr. Dollinger and the time surgery was performed. The extent to which the patient was endangered cannot be assessed from the [medical records and depositions of plaintiff and Drs. Dollinger and Ladosci].

The trial court refused to admit into evidence the material contained in the foregoing proffers of proof because the experts were unable to quantify the increased risk of recurrence of cancer, holding that "it has to be more probable than not or within a reasonable degree of medical probability that, as a proximate result of any malpractice * * * [plaintiff] would fall within the 25 percentile." Faced with this ruling, which made evidence of quantification of the increased risk indispensable to plaintiff's claim of injury, plaintiff's attorney made a proffer that Dr. Lan, who was scheduled to appear the following day, was now prepared to testify that "because of the delay with a reasonable degree of medical probability, Mrs. Evers would fall into the 25 percentile." However, defendant objected to the proffer on the ground that in his report Dr. Lan was unable to determine the magnitude of the risk of recurrence and distant spread of the cancer. The report had concluded only that the delay had "increased" the risk. Ruling that Dr. Lan could not [406] testify beyond his report, the trial court then granted defendant's motion for judgment. In a conclusion adopted by the Appellate Division, the trial court ruled that although plaintiff's offer of proof on the alleged deviation from accepted medical standards of care would have created a jury question, there was nevertheless "no showing of any damages proximately flowing from that deviation."

We are satisfied that in the circumstances of this case it was error to enter judgment for defendant at the close of plaintiff's proofs. First, there was uncontradicted evidence that the malignant breast tumor actually increased in size because of the delay. Further, the disease had developed beyond the site of the original tumor itself into an infiltrating ductal carcinoma. Although claims for these specific injuries may not have been made in haec verba, they were clearly embraced within the four corners of the complaint and there was no objection to their admission on the ground that they went beyond answers to interrogatories. Hence, those proofs alone demonstrated sufficient physical injury to withstand defendant's motion. Beyond that, plaintiff was prepared to show that she suffered anxiety, emotional anguish and mental distress. These were attributable not solely to her having the cancer but also to the growth of the tumor during the time proper treatment was withheld and from the realization, following the confirmation of her malignancy, that defendant's delay in her treatment had increased the risk that she would again fall victim, perhaps fatally, to the disease.

Finally, it is now clear that on remand plaintiff will be prepared to prove that the seven months delay increased the risk of recurrence and that such increased risk was a substantial factor in bringing about the condition from which plaintiff now suffers, or, put differently, that the harm of which there was but increased risk has now become a reality. Hence, we need not determine whether the unquantified (and unquantifiable) but nevertheless certain increase in the risk, standing alone, is sufficient injury to sustain plaintiff's cause of action.

[407] III

The most patent form of medical injury in this case relates to the growth of the malignant tumor itself. Mrs. Evers testified that she first discovered the lump in her breast in February 1977. Alarmed, she immediately arranged to see Dr. Dollinger. Following her examination by defendant in March 1977 and her discharge with the assurance that the lump was "nothing," she observed that the lump continued to grow to at least four times in size by the following October. As noted, plaintiff's expert also corroborated the fact that the malignancy grew and had become an infiltrating ductal carcinoma when finally surgically removed and identified. This progressive evolution of the malignancy during the period of delay until plaintiff received proper medical attention, occasioned by defendant's earlier failed diagnosis, is a cognizable injury and constituted an actionable element of damages.

In Cloys v. Turbin, 608 S.W.2d 697 (Tex.Civ.App. 1980), the court reversed a summary judgment in favor of defendant in plaintiff's action for medical malpractice. Defendant allegedly had failed to biopsy a mole-like growth on plaintiff's left arm that three months later was diagnosed as malignant melanoma. Plaintiff alleged that defendant's negligence "was a proximate cause of the malignant melanoma remaining, growing, and spreading in her body, of its not being removed at the earliest possible time * * *." Id. at 699. The defendant's expert concluded that plaintiff suffered no compensable damages as a result of defendant's negligence, asserting that, based upon reasonable medical probability, the malignant melanoma did not spread to other parts of plaintiff's body during the three months delay in diagnosis, since lymph nodes in the permanent section were negative. Id. at 700. The court rejected this explanation, stating that

it does not negate the possibility, specifically alleged in plaintiff's first amended petition, that the tumor on her arm grew during this period, at least by some [408] imperceptible amount. Accordingly, we hold that an increase in size, no matter how small, would constitute sufficient actual damages to sustain the element of injury in Mrs. Cloys' cause of action. [Id. at 701.]

Here, the malignant tumor grew significantly, not imperceptibly, during a seven months delay attributable to defendant's malpractice. Plaintiff clearly established that defendant's failure to diagnose the tumor prevented her from undergoing a mastectomy to excise the tumor at the earliest opportunity in 1977. As a proximate result of this malpractice, the tumor remained, grew, and spread in her body. An increase in the size of a malignant tumor, by definition, results in the spread of cancer cells into once healthy tissue, and therefore is an injury in and of itself.^[3]

The concession on the part of plaintiff that a mastectomy would have been necessitated even if the malignancy had been promptly diagnosed does not derogate from the fact that the malignancy was not promptly diagnosed. As a proximate result of that dereliction by defendant, the tumor not only remained in her body, it grew in size. Plaintiff was unquestionably more [409] seriously diseased as a result of the growth of the malignancy.^[4] This constituted actionable harm proximately caused by defendant's alleged malpractice according to a standard of reasonable medical probability. It was error on the part of the trial court to fail to recognize this form of injury as a compensable element of damages.

IV

An additional element of injury and damage derives from plaintiff's claims of anxiety, emotional anguish and mental distress. It will be recalled that plaintiff's complaint charged that as a result of defendant's failure to have made a timely and accurate diagnosis and render proper treatment, her "ailment and condition became aggravated and worsened and she suffered great pain and mental anguish, and will continue to do so" and her "physical and mental health were severely impaired * * *." In response to interrogatories Mrs. Evers detailed present mental distress subsequent to her mastectomy, manifested in "insomnia, weight gain, and fatigue." She also claimed dermatological problems as well as a periodic twitch and pain in the left eye caused by stress.^[5] This emotional upset was [410] borne out by Mrs. Evers' testimony at trial concerning her unrelieved state of anxiety and fear over the growing, untreated tumor, as well as her anger and hostility towards defendant after her tumor was finally diagnosed. At trial the plaintiff was prevented from presenting effectively and fully the evidence relating to her mental and emotional condition.^[6]

On retrial plaintiff should be permitted to present her claims based on mental and emotional injury. Certainly compensable injury in the form of mental pain and suffering in a context of medical malpractice is not new. West v. Underwood, 132 N.J.L. 325 (E. & A. 1945). Damages for Mrs. Evers' emotional and mental suffering should be awarded upon proof that this distress resulted from defendant's negligent failure to diagnose her tumor and effectuate prompt and proper treatment. See id. at 326. "[C]ourts have come to recognize that mental and emotional distress is just as `real' as physical pain, and that its valuation is no more difficult." Berman v. Allan, 80 N.J. 421, 433 (1979); see Schroeder v. Perkel, 87 N.J. 53 (1981). Such distress could well encompass concerns over the anticipated future consequences of malpractice. See, e.g., Carter v. Public Serv. Coord. Transp., 47 N.J. Super. 379 (App.Div. 1957) (plaintiff entitled to damages for personal injuries including anxiety and worry over possible injuries to her unborn child as the result of her own physical injuries when she fell while attempting to climb steps to board a bus, even though her baby was born normal and healthy three weeks later); Friel v. Vineland Obstetrical & Gynecological Ass'n, 166 N.J. Super. 579 (Law Div. 1979) (awarded damages to a mother for the mental distress over possible brain damage to her child as well as damages to the mother for her own physical injuries proximately resulting [411] from defendant's malpractice in causing plaintiff's child to be prematurely delivered, despite the fact that the harm of brain damage to the child would remain speculative for three to five years).

Plaintiff's claim for mental and emotional suffering from delayed diagnosis and treatment will not be diminished or defeated by a demonstration that delay itself was not the cause of her ultimate physical injury. In Ciluffo v. Middlesex Gen. Hosp., 146 N.J. Super. 476 (App.Div. 1977), the trial court's dismissal of plaintiff's claim against a physician for physical and emotional damages suffered because of a delay in treatment of less than twenty-four hours was reversed, even though plaintiff's experts could not establish proximate cause between defendant's negligent delay in diagnosing and treating plaintiff's neck injury and the subsequent complications suffered by plaintiff. The court observed:

Certainly the jury could have reached the logical conclusion that plaintiff's recovery, hence her pain and suffering, was prolonged by the period of time before proper treatment was undertaken. Although plaintiff proved no other consequences of this delay, she was entitled to be compensated for the pain and suffering endured for the period of the delay, if she proves that Dr. Maddatu was negligent and if plaintiff has not already received full compensation from the settling tortfeasor for all her injuries. [Id. at 481.]

See also Marek v. Professional Health Servs., Inc., 179 N.J. Super. 433 (App.Div. 1981) (plaintiff's x-ray was negligently read as negative when in actuality it disclosed an early, treatable stage of lymphatic cancer. About a year later, plaintiff's disease process was diagnosed as "a Stage 4 diffuse, well-differentiated lymphocytic lymphoma," considered a terminal phase as the result of widespread metastasis. The court upheld plaintiff's recovery for the physical disability and pain and suffering during his lifetime resulting from a delayed diagnosis and treatment).

Plaintiff projected a plausible claim for compensation attributable to emotional and mental injury. The trial court erred in discounting and rejecting evidence of such injury.

[412] V

Plaintiff's evidence of physical injury proximately caused by defendant's malpractice included the growth in size of the tumor and, arguably, the infiltration or the increased infiltration of plaintiff's cancer into the ducts surrounding the original cancer site. In addition to compensation for these physical injuries, Mrs. Evers also should be able to receive damages for any resultant emotional anguish and mental distress. She has, unfortunately, since the trial and while this appeal was pending, allegedly suffered a recurrence of life-threatening cancer, as revealed by the certification annexed to plaintiff's motion "for a hearing before the Trial Judge to determine the adequacy of the newly discovered evidence for a new trial", with this Court "to retain jurisdiction * * * until such time as findings of fact are returned" to us. The certification is by plaintiff's attorney and contains the information about the recurrence and progression of plaintiff's cancer as recited supra at 403.

Because of our determination that there must be a retrial, we consider the motion technically moot.^[7] We would be remiss, [413] however, were we to close our eyes to the contents and import of the certification, containing representations made to us by an officer of the Court. This is so not only because of the interests at stake and the extraordinary nature of the circumstances, but particularly because the role of "increased risk" will doubtless be prominent in the retrial, and the trial court and counsel are entitled to our guidance.

Courts have come to recognize that the difficulties of identifying, defining, and proving injury in certain types of medical malpractice cases justifies the application of a standard of causation that is more flexible than that used in conventional tort claims. See, e.g., Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).^[8]

[414] In Hamil, supra, the Supreme Court of Pennsylvania confronted the issue, in a case of wrongful death from a heart attack, of whether the relationship between increased risk of harm and the decedent's death was sufficient to hold defendant hospital responsible. Plaintiff's decedent, suffering from chest pains, was transported to the hospital, where he received negligent treatment in the emergency unit. Plaintiff's expert witness testified that had the hospital rendered proper treatment, the decedent would have had a 75% chance of surviving the heart attack he was experiencing when admitted to the hospital. Defendant, whose expert witness testified that the patient would have died regardless of any treatment provided by the defendant hospital, argued that plaintiff had failed to make out a prima facie case because of the absence of proof that defendant's negligence did, within a reasonable degree of medical certainty, cause decedent's death. Citing the Restatement (Second) of Torts § 323(a) (1965)^[9] as authority for relaxation of the degree of certitude usually required before plaintiff's evidence can make out a jury question, the court held that when there is evidence that a defendant's negligent act or omission increased the risk of harm to one in the plaintiff's position and [415] that the harm was in fact sustained, "it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm." 481 Pa. at 269, 392 A.2d at 1286.

The Hamil court took pains to distinguish the facts of that case from the more routine tort case, in which the law requires proof that the result complained of probably would not have occurred "but for" the negligent conduct of the defendant. A conspicuous feature of Hamil, and of the case before us, is that defendant was charged with having failed in a duty to protect against harm from another source; hence the fact-finder must consider not only what did occur but also what might have occurred:

Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of Restatement (Second) of Torts] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof. [Id. 481 Pa. at 271, 392 A.2d at 1287-88 (footnote omitted).]

The Hamil court held that once a plaintiff has demonstrated that a defendant's negligent act or omission has increased the risk of harm to another and that the harm was in fact sustained, such evidence is sufficient to create a jury question as to whether the increased risk was in turn a substantial factor in producing the resultant harm.

The Pennsylvania court applied this analysis in a cancer malpractice case, Gradel v. Inouye, supra, 491 Pa. 534, 421 A.2d 674, in which plaintiff alleged that in early fall of 1964 defendant failed to take reasonable steps to diagnose and remove lumps from her child's forearm. Plaintiff consulted another doctor who in November 1965 detected and removed a cancerous mass in the child's bone. Unfortunately, the cancer's recurrence at that site necessitated amputation in December 1966. Plaintiff's medical expert testified that a biopsy should have been performed much earlier and that the defendant's failure to have diagnosed the fibrosarcoma (cancer of the bone) allowed it to [416] invade the bone and become a substantial factor in the loss of the arm. Finding for plaintiff, the Gradel court noted:

[M]edical opinion need only demonstrate, with a reasonable degree of medical certainty, that defendant's conduct increased the risk that the harm sustained by plaintiff would occur. The jury, not the medical expert, then has the duty to balance probabilities and decide whether defendant's negligence was a substantial factor in bringing about the harm. * * * In [plaintiff's expert's] opinion, * * * if the fibrosarcoma had been [detected and] removed earlier, the recurrence which necessitated the amputation would have been less likely. We conclude that the expert medical testimony here constituted sufficient evidence from which the jury could have found that [defendant's] negligence was a substantial factor in producing the harm. [Id. at 544-545, 421 A.2d at 679 (emphasis in original, citation and footnote omitted).]

The Pennsylvania Supreme Court again addressed the issue of causation in connection with a case in which plaintiff alleged that defendant had failed properly to diagnose and treat her breast cancer. In Jones v. Montefiore Hosp., supra, 494 Pa. 410, 431 A.2d 920, defendants either failed to remove the mass in plaintiff's breast during a scheduled biopsy or to diagnose and treat a later discovered mass. Almost two years later, the mass was diagnosed as cancer and removed in a modified radical mastectomy. By that time the cancer had metastasized to a lymph node. There was expert testimony that even if the mass had occurred after the original biopsy, if it had been diagnosed and removed earlier, probably the cancer would not have metastasized or spread to a lymph node. The court characterized this inference as reasonable.

From this evidence, the jury might well have concluded that the failure either to remove the original mass or to properly test and treat a new mass prevented early detection and thereby increased the risk of mastectomy or, at the very least, increased the risk that cancer would metastasize. [Id. at 419, 431 A.2d at 925.]

The court concluded that the jury should have been instructed to impose liability if it decided that defendant's negligent conduct increased the risk of harm and that such increased risk was a substantial factor in bringing about the harm actually inflicted upon plaintiff, "whether or not the medical testimony as to [417] causation was expressed in terms of certainty or probability." Id. at 418, 431 A.2d at 924.

The foregoing authorities, which we view as persuasive, find their provenance in Hicks v. United States, 368 F.2d 626 (4th Cir.1966), involving an action under the Federal Tort Claims Act for damages resulting from the death of a 25-year-old woman from an undiagnosed bowel obstruction. Plaintiff's action was grounded in the theory, supported by uncontradicted expert testimony, that if operated on promptly, the decedent would have survived. Defendant argued that there was insufficient evidence that the admittedly erroneous diagnosis was a proximate cause of the decedent's death, and that even if surgery had been performed immediately, it would amount to no more than speculation to say that it would have been successful. Rejecting that argument the Court of Appeals, in a passage frequently quoted, said:

When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he had put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. [328 F.2d at 632 (emphasis in original).]

Applying the principles extracted from these cases, we hold that on remand plaintiff should be permitted to demonstrate, within a reasonable degree of medical probability, that the seven months delay resulting from defendant's failure to have made an accurate diagnosis and to have rendered proper treatment increased the risk of recurrence or of distant spread of plaintiff's cancer, and that such increased risk was a substantial factor in producing the condition from which plaintiff currently suffers. We hold further that Restatement (Second) of Torts § 323(a) is applicable to medical malpractice cases.

Reversed and remanded.

[418] HANDLER, J., concurring.

In this difficult cancer malpractice case the Court has ruled that the trial court, and the Appellate Division affirming, erred in refusing to recognize that plaintiff Merle Evers, victimized by defendant's failure to make a prompt and effective diagnosis of her malignancy, had proved substantial consequential injuries. The Court has decided that it was error to enter judgment for defendant at the close of plaintiff's proofs since plaintiff had established sufficient evidence of physical injury. The uncontested evidence that the physical enlargement of plaintiff's malignant breast tumor as well as the infiltration or increased infiltration of the cancerous cells into the ducts surrounding the original site of the tumor arguably constitute injuries proximately caused by defendant's negligence. The Court also recognized that plaintiff was prepared to prove, and should have been permitted to prove, that she suffered anxiety, emotional distress and mental anguish as a result of her realization that defendant's misdiagnosis and the resulting delay in proper treatment increased the risk that she would suffer a life-threatening recurrence of cancer. I subscribe completely to these conclusions.

It would follow from these determinations alone that plaintiff is entitled to a remand and a retrial with the opportunity to establish these damages. I therefore find great significance in the Court's additional conclusion concerning another element of damages that will be available to plaintiff on the remand. The Court concludes that plaintiff is entitled to prove that defendant's alleged negligence in delaying proper treatment resulted in an increased risk of metastasis and that such increased risk was a substantial factor in bringing about plaintiff's post-trial recurrence of cancer. Since at this time the potential harm attributable in part to defendant's malpractice has actually occurred in a form of metastasis capable of clinical detection, the Court is willing to permit consideration of the unquantified increased risk of such harm as an element of damages. The Court accepts the application of Restatement (Second) of Torts § 323(a) (1965) [419] to this kind of medical malpractice case, reducing plaintiff's burden of proof to a threshold of substantial likelihood, that is lower than the traditional standard of reasonable medical probability (Coll v. Sherry, 29 N.J. 166, 175 (1959)).

I fully endorse these holdings. Actual increased risk of harm, even though not measurable or quantifiable, in the context of medical malpractice is sufficiently demonstrable to justify its recognition as a compensable form of injury. The relaxation of plaintiff's burden of proof under these circumstances to allow the recognition of and redress for such injury fairly and justly ameliorates the traditional burden of proof that would render establishment of this kind of injury unnecessarily difficult.

Because in this case, as it has unfolded during the pendency of the appeal, the increased risk — the possibility of cancer recurrence — "has now become a reality," the Court feels it "need not determine whether the unquantified (and unquantifiable) but nevertheless certain increase in the risk standing alone, [i.e., without a recurrence of cancer] is sufficient injury to sustain plaintiff's cause of action." Ante at 406; 412 n. 7. Perhaps not. However, when this case was tried, the harm from the increased risk had not yet become a reality. Many cancer patients whose condition has been made worse because of an unreasonable delay in proper diagnosis and treatment may not have suffered an ultimate harm when they realize they have been the victims of malpractice. I think it is therefore entirely appropriate and extremely needful that this issue — whether such an increased risk of an ultimate harm may constitute a compensable injury even though that harm has not yet eventuated — be addressed.

I

At the outset, it is important to point out that even if plaintiff were not otherwise entitled to a remand and retrial, the subsequent recurrence of cancer following the trial itself justifies the grant of a new trial. The Court considers that the question [420] raised by plaintiff's motion for a new trial on the ground of the post-trial recurrence of cancer may be "technically moot" because plaintiff is otherwise entitled to a remand, ante at 412. However, the question of whether this recurrence of cancer standing alone would merit a retrial clearly ought to be resolved. This situation can arise in countless cases involving malpractice. Further, the increased risk of harm complete with the recurrence of cancer is now recognized by the Court as a relevant additional injury on the remand even though it has occurred after the trial.

Mrs. Evers was clinically cancer-free at the time of her trial in May 1981, three and one-half years after she underwent a radical mastectomy in October 1977. However, according to the motion brought by her attorney on this appeal, by July 1983 she had suffered a recurrence of cancer, clinically verified by breast cancer cells found in her lung, some six years after her original surgery and more than two years after trial.

Such evidence, which is the subject of plaintiff's motion for a new trial, should be regarded as newly discovered evidence. R. 4:50-1(b). Clearly the continued existence or presence of cancerous cells in her body, following corrective surgery, was not discoverable or previously known. Presumably, available scientific and medical technology was incapable of detecting such underlying cancer or micrometastasis. Consequently the recurrence of cancer should be regarded as newly discovered evidence when it is clinically diagnosed. Because the recurrence of cancer is the exact harm that she risked suffering as a result of defendant's malpractice, it is a significant consequential injury that should be included in an assessment of plaintiff's total damages. This evidence is unquestionably highly relevant to plaintiff's cause of action and damages claims. Recognition of such evidence as within the purview of R. 4:50-1(b) would then allow in a single action all relevant and material elements of injury and damages, including those related to the recurrence of [421] the cancer and the unquantified enhancement of risk of that harm.

II

I consider that the linchpin of the Court's explication of the nature and scope of legally cognizable medical injury in a case such as this, involving negligent delay in the proper treatment of cancer, is the actuality of an increased risk of a recurrence of the cancerous condition. The Court recognizes in this case that as a result of the malpractice, Mrs. Evers did in fact suffer an actual increased risk that the cancer would recur, demonstrated wholly apart from the fortuitous circumstance that subsequent to the trial plaintiff again fell victim to the cancer. Ante at 406. However, such enhancement of risk is recognized by the Court as a compensable injury only because plaintiff has experienced a recurrence of cancer. The Court rules that this evidence — the increased risk of harm plus the harm itself — may be proved at a new trial in which the damages issues will have been expanded in light of changed circumstances.

I do not dispute the significance of resultant harm in the overall analysis of medical injury and assessment of damages. I do not believe, however, that such resultant harm constitutes a sine qua non, a condition precedent before there can be recovery for an actual albeit unquantified increase in the risk of such harm. The Court is here troubled by a seeming inability to quantify the risk of future cancer. But, adding the incurrence of future harm as a requirement for the recovery for such increased risk does not resolve the dilemma since the risk still remains unquantified. Yet, insistence that the harm occur as a condition for recovery does unfortunately add greatly to the legal burdens of cancer victims. The inadvertent effect of such a court rule is that those victims, who undeservedly have been put in greater peril in terms of their survival, are not permitted to be compensated for this peril unless they have suffered a resurgence of their cancer.

[422] Medical science itself cannot quantify the increased risk of cancer in such victims.^[10] Nevertheless, medical science does acknowledge the existence of an increased risk. This should be sufficient to satisfy the standard of reasonable medical probability that we generally recognize. Coll v. Sherry, supra, 29 N.J. at 175.

In this case, it was established that, without any negligence on the part of the doctor in treating plaintiff, she was exposed to at least a 25 percent risk or probability that she would again become a cancer victim. Thus, plaintiff should be required to prove only that defendant's malpractice and the resultant delay in receiving proper treatment increased the probability that she would fall into the 25 percentile of persons who suffer recurrence. Stated somewhat differently, the plaintiff should be required to prove simply that (1) absent defendant's malpractice she had a 25 percent chance of suffering a recurrence of cancer and (2) because of defendant's malpractice, there is a probability greater than 25 percent that she will suffer such a recurrence and a concomitant diminishment of her chance of survival.

I approve of the Court's reliance on the Pennsylvania line of cases recognizing that the complexities of certain medical malpractice actions require a more flexible standard of causation than conventional tort claims. This is appropriate in order to prevent a tortfeasor from being unfairly insulated from the real but elusive consequences of his negligent conduct. A tortfeasor should not be allowed to escape responsibility for causing an increased risk that would not have existed but for his negligence simply because of the statistical uncertainty of the risk.

[423] Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of Restatement (Second) of Torts (1965)] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof. [Hamil v. Bashline, 481 Pa. 256, 271, 392 A.2d 1280, 1287-88 (1978) (footnote omitted).]

See also Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980), applying this principle to cancer medical malpractice cases.

The Pennsylvania court in Hamil held that unquantified increased risk due to defendant's negligence is an actionable injury once the harm has in fact ensued; if the jury determines that the increased risk was a substantial factor in producing the actual harm, the plaintiff will prevail. While the cited cases relied on by the Court have all involved situations where such future harm in fact occurred, that circumstance should not be regarded as indispensable in demonstrating the existence of medical injury. The significance of these decisions is that once the basic fact that the risk had increased to some degree had been proved to a reasonable medical probability, none required the increased risk of future cancer attributable to a defendant's malpractice be measured or quantified.

In James v. United States, 483 F. Supp. 581 (N.D.Cal. 1980), the court viewed the unquantified loss of the chance of survival caused by delayed treatment as constituting compensable injury in and of itself even while the plaintiff remained alive. In James, plaintiff's chest x-ray and radiologist's report disclosing an abnormality were inadvertently filed without being reviewed by the examining physician of plaintiff's prospective employer. Two years later plaintiff was diagnosed as having lung cancer. Plaintiff's experts concluded on the basis of the tumor's size that it had probably metastasized since the negligent oversight and that earlier radiation treatment would have decreased its size and reduced the risk of metastasis. Id. at 587. Although plaintiff continued to live, the court awarded damages for the [424] unquantified but actual increased risk of death, as well as the accompanying mental anguish arising from the awareness of this increased risk.

As a proximate result of defendant's negligence, James was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. No matter how small that chance may have been — and its magnitude cannot be ascertained — no one can say that the chance of prolonging one's life or decreasing suffering is valueless. [Id. at 587.]

The increased risk of a recurrence of cancer due to delayed treatment is so obvious that it is a cruel irony to insist that a cancer victim again be stricken in order to receive just compensation for medical injuries. In this case, the medical testimony of the increased risk of future cancer was unimpugned. This medical testimony established that plaintiff was at a greater risk of future metastasis on account of the delay in receiving proper treatment. As recapitulated by the Court, both plaintiff's medical experts were of the opinion that defendant's malpractice — the untimely diagnosis and the delayed treatment of the malignancy — increased the chances that plaintiff would suffer a recurrence of the cancer. Ante at 404-405.

Harm in the form of increased risk of future cancer attributable to delay in diagnosis and treatment has become so widely accepted by the medical community that the existence of such harm could be reasonably inferred from this professional common knowledge. A survey of the medical literature indicates that it is universally agreed within the medical community that delay in cancer diagnosis and treatment usually increases the risk of metastasis.^[11] Thus, the inference of harm from delayed [425] treatment would be permissible, aside from expert testimony explaining the etiology or physiological nature of such harm. See Buckelew v. Grossbard, 87 N.J. 512, 528-29 (1981) (Testimony of plaintiff's expert witness created a permissible inference of negligence on the basis that his opinion represented the "common knowledge within the medical community that the type of accident that took place in this case does not ordinarily occur in the absence of the surgeon's negligence" and such knowledge was based on experience rather than intuition.). Indeed, the Court, pursuant to Evid.R. 9(2)(e), arguably could take judicial notice of this literature and the evidential inferences which it generates. See Calabrese v. Trenton State College, 82 N.J. 321, 325 (1980) (Existence and extent of the risk of harm involved in administering a series of anti-rabies injections could be established by use of medical reports of treating physicians, medical depositions, and use of extensive medical literature pursuant to Evid.R. 9(2)(e), providing for judicial notice of "specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources of reasonably indisputable accuracy."); see also James v. United States, supra, 483 F. Supp. at 586 ("Plaintiff may [426] demonstrate the benefit of earlier treatment in his case by relying on general theories of appropriate medical treatment.").

Further, common knowledge and informed lay testimony can augment the opinion of medical experts concerning the relationship of delayed diagnosis and treatment to the spread of cancer. Information about this causal relationship is widely disseminated.^[12] The general public accepts the causal relationship between delay in treatment and metastasis; it understands the official and popular vocabulary of urgency stressing the imperative of early detection to prevent metastasis. Indeed, this common knowledge is endorsed and encouraged by the medical profession itself.^[13] Whether such information is accurately absorbed by the [427] average person or not, it can be used by fact-finders in their consideration of the existence and nature of injury. See Klimko v. Rose, 84 N.J. 496, 503-04 (1980).^[14]

In a case such as this, the medical evidence as reflected by the experts at trial and in discovery, as well as that available through published medical literature and the common knowledge of the general public, serves to establish that plaintiff was at a greater risk of future metastasis on account of the delay in receiving proper treatment. This conclusion is strengthened by the evidence in this case of the concomitant growth in the size of the tumor during the time proper treatment was withheld from the plaintiff, which growth alone the Court properly recognizes as a compensable form of injury. Ante at 407-409.

There is clearly a correlation of size and prognosis — between the increase in the size of a malignant tumor and the increased risk of metastasis. The Court acknowledges that this increase in the size of the tumor during the delay in proper treatment attributable to defendant's malpractice is negatively related to prognosis.^[15]Ante at 409 n. 4. The same logic and common [428] sense that allows an award of damages for unquantified increased risk to cancer victims who exhibit positive lymph nodes at the time of surgery or thereafter (see Jones v. Montefiore Hosp., supra, 494 Pa. 410, 431 A.2d 920) justify damages to plaintiffs who also have established an identical increased risk but whose lymph nodes are negative for metastasis.^[16]

The following observation was made in a somewhat variant context raising similarly perplexing problems in understanding the nature of physical and psychic injury and the appropriate assessment of damages:

Indeed, the collective wisdom of the community on the proper redress for a particular harm, informed by experience, common sense, and a desire to be fair to the parties, seems an acceptable way of arriving at a damage verdict and probably one that is preferable to a more scientific (and sterile) process that [429] excludes nonquantifiable elements to achieve an aura of objectivity and precision. [Capron, "Tort Liability in Genetic Counseling," 79 Colum.L.Rev. 618, 649 (1979) (citing Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931)).]

In my opinion there was an ample evidential basis in this case at the time of trial for recognizing the unquantified increased risk of future cancer as a compensable form of medical injury and an element of damages independent of an actual recurrence of cancer. The expert opinion in this case is buttressed by the shared understanding of the medical profession itself and comports with the common knowledge and experience of the public-at-large. The widespread acknowledgement of this unquantified increased risk of future metastasis due to delayed diagnosis and treatment and its critical correlation with growth in size of a malignancy, which is recognized by the Court as an actionable claim, justifies awarding damages notwithstanding the absence of an absolute quantification that is beyond the current capacity of science.

Failure to do otherwise is grossly unfair to cancer patients victimized by medical malpractice. It deprives them of rightful compensation while burdening them with the need to pursue multiple and successive claims. By insisting that the harm be incurred before entitlement to a claim exists, no action for an actual but unquantified enhancement of risk could be brought before that unforeseeable time when a plaintiff experiences a recurrence of disease. Such a rule may very well force a plaintiff to engage in multiple suits in order to recover adequate damages for all injuries proximately attributable to the medical malpractice. No sound policy is served by needlessly encouraging successive actions based upon a single tort, with the consequent potential for complexity of issues, duplication of claims, and confusion in results. Cf. Alfone v. Sarno, 87 N.J. 99 (1981) (Although parties and interests are different in decedent's own personal injury suit and wrongful death action, defendant should be required to litigate only once the substantive issues [430] deriving from a single act of negligence, and elements of damages should not be duplicated.).

For these reasons, I write separately while concurring in the judgment of the Court.

HANDLER, J., concurring in the result.

For reversal and remandment — Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK, O'HERN and GARIBALDI — 6.

For affirmance — None.

[1] After a draft opinion had been prepared, plaintiffs moved the Court to withhold its opinion to permit supplementation of the record with "additional medical evidence." We address the motion and the proferred evidence in the course of our decision on the merits.

[2] Plaintiff Richard Evers sues per quod. As used in this opinion, "plaintiff" refers to Merle Evers.

The only defendant involved in this appeal is Kenneth Dollinger, M.D., and reference to "defendant" is to Dr. Dollinger.

[3] Closely related to the fact that the tumor increased in size as a result of the seven months delay is the additional circumstance that diagnosis of the cancer when it was finally revealed was that of infiltrating ductal carcinoma. According to plaintiff's expert, this indicated that "there was a tumor inside the ducts of the breast which spread beyond the duct and infiltrated into the surrounding tissue." Infiltrating ductal carcinoma indicates a spread of cancer outside the ducts where the disease originated, and is considered a graver condition than intraductal carcinoma. Feig, Schwartz, Nerlinger & Edeiken, "Prognostic Factors of Breast Neoplasms," 133 Radiology 577, 578 (1979) [hereinafter cited as Feig]; see also Silverberg and Chitale, "Assessment of Significance of Proportions of Intraductal and Infiltrating Tumor Growth in Ductal Carcinoma of the Breast," 32 Cancer 830, 834 (1973) (finding that mortality increased as progressive proportions of infiltrating to intraductal growth were attained. "The prognosis is excellent — with no known cancer deaths — for pure intraductal carcinoma, not quite as good for tumors with less than 10% infiltration, worse for tumors in the broad range of 10-89% infiltration, and significantly poorer still for tumors showing 90-100% infiltration.").

[4] Delay in treatment almost invariably results in a more serious prognosis. Clinical Onocology for Medical Students and Physicians at 41 (P. Rubin 3d ed. 1970-1971) ("Even in breast cancer, while it is difficult to show by overall figures that early diagnosis improves prognosis, there is definitely a higher prognosis associated with small tumors and limited or no ancillary node involvement. Both of these must be related to the passage of time. * * * Generally, the larger the tumor of a given organ, the worse the prognosis." (emphasis in original)); Feig, supra, 133 Radiology at 578 ("The correlation between tumor size and prognosis has been repeatedly demonstrated in numerous clinical studies. * * * Patients with smaller lesions have a much greater likelihood of long-term survival."); see also Diagnosis and Treatment of Breast Cancer at 21 (Lewison, Montague, Williams & Wilkins eds. 1981).

[5] This information was furnished by counsel at the Court's request following argument. It is mentioned simply to show that defendant cannot fairly assert that plaintiff did not present a claim for mental and emotional injury as a result of his malpractice upon her.

[6] The trial court restricted testimony of conversations between the plaintiff and others concerning her tumor to the mere physical fact of its existence. Such conversations were relevant and admissible as evidencing Mrs. Evers' state of mind and mental suffering. McCormick, Evidence § 294 at 695 (E. Cleary 2d ed. 1972); R. 63(12)(a).

[7] Whether "increased risk," standing alone, is an actionable element of damage in a malpractice case is a provocative question the determination of which we leave for an appeal that requires, as this case does not, the answer.

One commentator suggests that the increased risk need not be quantified in order to calculate compensation for the loss of the chance of surviving. King, "Causation, Valuation & Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences," 90 Yale L.J. 1353 (1981). His illustrations reveal, however, that the harm for which he advocates redress is not the increased risk per se, but rather a harm such as death or bodily injury occasioned in part by the increased risk. A patient who dies from a heart attack, writes King, would have a cause of action against the physician who had misdiagnosed the condition, even though the patient would have had only a 40% chance of survival with a timely diagnosis. King would award compensation equal to 40% of the value of the victim's life had he lived. Id. at 1382.

See also Jordan v. Bero, 158 W. Va. 28, 210 S.E.2d 618 (1974), in which the court found excessive a jury verdict for the father of a ten-year-old boy who was hit by a car while bicycling. In the course of its opinion, the court reaffirmed the rule that future damages are not compensable unless proven to a reasonable degree of medical certainty.

Justice Neely, though concurring in the result, differed with the majority about the standard for future damages. 210 S.E.2d at 640-41. He criticized the majority's rule as being rooted in an earlier time of less familiarity with probability and statistics. Id. at 640. In its place, Justice Neely proposed what he called "The Lady or the Tiger Rule," referring to the story of the young man who was placed in the arena by an evil king and forced to choose one of two doors, behind one of which was a beautiful woman and behind the other a ferocious, hungry tiger:

[I]t is possible to conceptualize the possibility of future medical expenses as a separate injury, in very much the same way that requiring a man to stand in the arena and open one of two doors is in and of itself a separate injury.

* * * * * * * *

Therefore, in a hypothetical case, if a man can demonstrate that there is a twenty percent probability that he will have future injuries which would, if they occurred, result in damage to him in the amount of a hundred thousand dollars, he should be able to recover twenty thousand dollars from the defendant, which recovery would represent the injury of incurring a twenty percent probability of suffering one hundred thousand dollars worth of damages. [Id. at 64, 210 S.E.2d at 640-41.]

[8] For an exhaustive discussion of Hamil v. Bashline, supra, as well as other pertinent authorities, see Herskovits v. Group Health, 99 Wash.2d 609, 664 P.2d 474 (1983), and id. at 619, 664 P.2d at 479 (Pearson, J., concurring), id. at 636, 664 P.2d at 487 (Brachtenbach, J., dissenting), id. at 642, 664 P.2d at 491 (Dolliver, J., dissenting).

[9] Restatement (Second) of Torts § 323(a) provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increased the risk of such harm * * *.

This section and its predecessor have been a fixture in our law for more than twenty years, although not in the context of a medical malpractice case. See Brooks v. New Jersey Mfrs. Ins. Co., 170 N.J. Super. 20 (App. Div.), certif. den., 81 N.J. 413 (1979); Jackson v. New Jersey Mfrs. Ins. Co., 166 N.J. Super. 448 (App.Div.), certif. den., 81 N.J. 330 (1979); Viducich v. Greater N.Y. Mut. Ins. Co., 80 N.J. Super. 15 (App.Div.), certif. den., 41 N.J. 129 (1963).

[10] In this case, for example, plaintiff's cancer cells found first in the original breast tumor have now migrated to the lung, according to the certification annexed to plaintiff's motion for a new trial. Despite a pathology report negative for metastasis at the time of plaintiff's radical mastectomy almost six years earlier, this recurrence accentuates the inadequacy of medical science to detect micrometastasis — the clinically undetectable spread of cancer — and thus statistically assess increased risk, as well as emphasizing that this risk is absolutely real though eluding quantification.

[11] Examples of the acceptance of this knowledge within the medical community are numerous; experts continuously urge vigilant detection as the most realistic means of improving prognosis, viz: Clinical Oncology for Medical Students and Physicians at 33 (P. Rubin 3d ed. 1970-1971) ("The passage of time versus the spread of tumor: Most specialists in clinical cancer feel very strongly that the earlier one makes a diagnosis of cancer, the greater is the chance for cure.... [I]n breast cancer we do know that: 1. The bigger the tumor, the worse the prognosis.... Both of these factors are related to the passage of time. This concept of `the earlier the better' is the basis for attempts at the early diagnosis of cancer."); Dohrmann, McDermott & Price, "Symptom Duration, Tumor Staging and Survival in Patients with Carcinoma of the Breast," 154 Surgery, Gynecology, and Obstetrics 707 (1982) ("Earlier treatment is generally believed to improve survival prospects in patients with carcinoma of the breast."); Id. at 710 ("Cancer specific survival time was better for the total patient series and for those treated by potentially curative operation when symptoms had been present for one week or less as compared with those who had symptom duration of six months or more, p=0.007. Survival prospects were also better in those patients who had symptoms from one week to one month as compared with those who had six months or more symptom duration, p=0.005. These results indicate that patients in whom diagnosis is made and operation performed early in the symptomatic phase of carcinoma of the breast have less advanced tumors and better survival prospects.").

[12] U.S. Dept. of Health and Human Services, The Breast Cancer Digest 95 (1980) alludes to communication efforts for mass audiences, as well as the results of a study in 1977 comparing the effectiveness of alternative breast cancer public education programs. See also Cancer Control at 60 (1. Kessler ed. 1980) which refers to programs advocating early diagnosis sponsored by the American Cancer Society during the last 25 years. The messages are universal, e.g., "For these reasons cancer research scientists have long looked for methods of detecting or finding breast cancer early in its growth before it has had a chance to spread to other parts of the body." National Cancer Institute, Breast Exams: What You Should Know 1 (1981); "The real hope for the future is in earlier detection.... At present, the key to saving more lives from breast cancer is earlier detection and treatment." American Cancer Society, Inc., Facts on Breast Cancer 14 (1982); "At the beginning, cancer cells usually remain at their original site, and the cancer is said to be localized.... If left untreated however, the cancer is likely to spread throughout the body." Id. at 4; "Because with each stage a case of cancer becomes progressively serious, it is important to detect cancer as early as possible." Id. at 4; "The therapeutic consequence of the detection of a tumor in Stage I is that, if it can be located, removal would prove truly curative." Cancer Control, supra at 59; "Until breast cancer can be prevented, the greatest hope for its control is early detection, diagnosis, and treatment." The Breast Cancer Digest, supra at 17.

[13] One of plaintiff's experts, Dr. Janis, stated at deposition in this case: "I have to tell you what everybody, including a layman knows, namely, that one can expect a complete cure of cancer with surgery only if the tumor is completely removed before it spreads to distant sites [metastasis]. The longer a malignant tumor remains in the body, the greater the chances of metastasis." (Emphasis added). This testimony was heard by the judge outside the presence of the jury.

[14] The use of common knowledge may be particularly apt in the cancer field. Radiation therapy for cancer is an example of the expansion of the doctrine of common knowledge. Compare an earlier case, Dietze v. King, 184 F. Supp. 944, 946 (E.D.Va. 1960) (effects of radiation therapy not within common knowledge) with a later decision, ZeBarth v. Swedish Medical Center, 81 Wash.2d 12, 20, 499 P.2d 1, 7 (1972) ("high voltage radiation in the treatment of cancer has been widely enough and long enough employed in this country to allow the jury to find that, within the experience and observation of mankind, myelopathy or paralysis ordinarily will not result from its use...."); Dahlquist, "Common Knowledge in Medical Malpractice Litigation: A Diagnosis and Prescription," 14 Pac.L.J. 133, 135 n. 4 (1983).

[15] This correlation is so strong that even patients such as plaintiff whose lymph nodes were negative for metastasis at the time of her mastectomy may have no better chance for survival than patients whose cancer has already metastasized into the lymph nodes. The risk of recurrence is frequently more affected by the size and growth of a malignancy, correlated with delayed treatment, than it is to actual metastasis at the time of detection. See, e.g., Fracchia, Rosen & Ashikari, "Carcinoma of Breast Without Axillary Lymph Node Metastasis," 151 Surgery, Gynecology & Obstetrics 375, 376 (1980) ("Recurrence was more frequent with an increase in size of the primary carcinoma. Usually, the survival rate paralleled the frequency of recurrence, and both were associated with tumor size....") This is true even as to a person, like plaintiff, whose lymph nodes were negative for metastasis. Id. at 377 ("The likelihood of recurrence among patients with negative [lymph] nodes, was directly related to the size of the primary tumor, being less with smaller carcinomas and more frequent with larger lesions. In this respect, patients with, or without metastasis, in the axillary lymph nodes are similar.").

[16] In this case, it is logical that unquantified increased risk of metastasis is also compensable as a future consequence of the existent harm of the enlarged tumor, even without the post-trial recurrence of cancer. Once she has proved actual harm, plaintiff's action for damages for future metastasis is analogous to the Pennsylvania case cited by the Court that awarded damages not only for an unquantified increased risk of harm that was a substantial factor in bringing about the resultant harm, according to Restatement (Second) of Torts § 323(a), but also for unquantified future risk resulting from that harm. "[A] doctor properly may be allowed to explain the possible future effects of an injury, and with less definiteness than is required of opinion testimony on causation. Consequently, it was not improper for the jury to consider the possibility of future metastasis in awarding damages." Gradel v. Inouye, supra, 491 Pa. at 546, 421 A.2d at 680.

[544] Oscar L. Shoenfelt, III, Marjorie Ann McKeithen, Moore, Walters & Shoenfelt, for Applicant.

Gordon L. James, Jan Peter Christiansen, Hudson, Potts & Bernstein, for Respondent.

Stewart Earl Niles, Jr., Patricia Anne Bethancourt, Counsel for Louisiana Medical Mutual Ins. Co., and LAMMICO amicus curiae.

Lawrence S. Kullman, Troy E. Bain, for Louisiana Trial Lawyers Association amicus curiae.

LEMMON, Justice^[1]

On several occasions, this court has recognized the right to recover damages in medical malpractice cases for the loss of a chance of survival. Hastings v. Baton Rouge Gen. [545] Hosp., 498 So.2d 713 (La.1986); Smith v. State Through Dept. of Health & Human Resources Admin., 523 So.2d 815 (La.1988) and Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991). In Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112, p. 4 (La. 7/5/94), 639 So.2d 216, 219 n. 4, we noted that this court has not yet addressed the method of valuation of the damages recoverable for the loss of a chance of survival. We granted certiorari in the instant medical malpractice case to address that issue.

I

In August 1987, Benjamin Smith went to E.A. Conway Memorial Hospital, complaining of a sore on top of his right foot. The attending physician diagnosed cellulitis with lymphangitis, and Smith underwent minor surgery to drain the fluid from his foot.

Smith's five-day hospitalization included a routine chest x-ray which the staff radiologist reported as showing "a mediastinal mass projected to the right of the trachea." The doctor stated that "lymphoma must be considered in the differential diagnosis" and recommended a CT scan of the thoracic area. The hospital staff failed to inform Smith or his family of the x-ray results or to recommend further testing. Smith was simply discharged from the hospital without any information about the mass in his chest.

Almost fifteen months later, Smith returned to E.A. Conway, complaining of a three-week history of "left pleuritic chest pain, fever, and chills." A second chest x-ray on October 31, 1988, compared with the August 1987 x-ray, revealed that the mass had doubled in size. Smith and his family then learned for the first time of the August 1987 x-ray report.

Further testing confirmed the diagnosis of small cell carcinoma of the lungs, a fast-acting and lethal cancer. By this time, Smith's cancer had progressed to the "extensive" stage, in that the cancer was present in both lungs and was non-operable.^[2] Despite aggressive drug treatment and chemotherapy, Smith died on March 16, 1989, nineteen months after the initial x-ray. He was forty-five years old at his death.

Smith's wife and their two minor children petitioned for a medical review panel. The Louisiana Department of Health and Hospitals, which operated E.A. Conway Hospital, stipulated to its breach of the standard of care and waived the panel. In the stipulation, the Department "admit[ted] that its employees and/or physicians for whom it is responsible pursuant to La.Rev.Stat. 40:1299.39 were at fault and breached the standard of reasonable care in failing to render follow-up testing and/or treatment in connection with the x-ray of August 14, 1987." However, the Department expressly reserved the right to contest causation and damages. This action followed, seeking both survival and wrongful death damages.^[3]

The Department answered, reiterating its stipulation that its employees and physicians had breached the standard of care for medical treatment under the circumstances, but contesting whether the delay in treatment had caused any damages. Alternatively, the Department asserted that if the delay in treatment caused any diminution in Smith's reasonable life expectancy, then only a reduced amount of the normal survival and wrongful death damages should be awarded.

At trial, the parties presented evidence by several doctors relating to the percentage chance of survival for certain periods of time after discovery of small cell carcinoma of the lung at various stages of progression of the disease. The trial court ruled that plaintiffs had not met their burden of proving that the fifteen-month delay in treatment resulting from the State's admitted negligence had caused Smith to die or to lose a chance of survival. The judge noted that Smith actually "lived his expected life span" after the [546] 1987 x-ray, referring to the estimated length of time Smith would have been expected to survive, according to statistical averages, if he had received treatment immediately after the x-ray. Accordingly, the judge dismissed plaintiffs' action.

The court of appeal reversed, concluding that the trial court was plainly wrong in failing to find the loss of a chance of survival. 26,280 (La.App. 2d Cir. 12/9/94), 647 So.2d 653. Although Smith arguably lived without treatment as long as the average life span of a patient who underwent treatment, the court stated that every expert testified Smith had lost some chance of surviving the disease because of the Department's negligence. Supported by excellent analytical reasoning, the court held that plaintiffs were entitled to recover damages for Smith's loss of a chance of survival.

As to the method of measuring those damages, the intermediate court rejected plaintiffs' contention that they were entitled to full damages for the death, noting that plaintiffs failed to prove, more probably than not, that Smith would have survived but for the Department's malpractice. Drawing heavily on Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981), the court reasoned that granting recovery upon lesser proof than the more-probable-than-not rule should be balanced by a concomitant reduction of the potential damages for a case where the tort victim's death probably would not have occurred but for the defendant's fault. However, the court pointed out that the plaintiff in a loss of a chance of survival case still retains the burden of proving by a preponderance of the evidence that the defendant's negligence caused the loss of a chance.

Accordingly, the court held that "the percentage probability of loss, if less than 50%, is the proper measure of the plaintiff's damages in a case of wrongful death due to medical malpractice." 26,280, p. 11, 647 So.2d at 662. Referring to expert evidence that recurrence of cancer after five years is rare, the court then reviewed other expert testimony as to the chance of survival for five years. Four doctors testified that the chance of survival, at the stage of the disease when the initial x-ray was taken, was one to twelve percent, ten to fifteen percent, five percent, and seven to twenty-five percent respectively.^[4] The experts further agreed that Smith's chance of survival at the time of the October 1988 x-ray was less than one percent. Analyzing this evidence de novo, the court concluded that the evidence preponderated to show that the Department's negligence was a substantial factor in depriving Smith of a ten percent chance of surviving for five years. Fixing the total damages at $764,347,^[5] the court reduced this amount proportionate to the lost ten percent chance of survival and awarded a total of $76,434 to Mrs. Smith and her two minor children.

On plaintiffs' application, we granted certiorari, primarily to address the method of measuring the damages caused by the deprivation of a chance of survival of less than fifty percent. 95-0038 (La. 3/10/95); 650 So.2d 1167.

II

The court of appeal was correct in holding that plaintiff proved by a preponderance of the evidence that the negligence of the Department's physicians and employees deprived Smith of a chance of survival, a loss for which the Department must respond in damages. Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986). The court of appeal was also correct in holding that the plaintiffs were not required to prove a "reasonable" or "substantial" chance of survival. The issues in loss of a chance of survival cases are whether the tort victim lost any chance of survival because of the defendant's [547] negligence^[6] and the value of that loss. The question of degree may be pertinent to the issue of whether the defendant's negligence caused or contributed to the loss, but such a tort-caused loss in any degree is compensable in damages.^[7]

Allowing recovery for the loss of a chance of survival is not, as the court of appeal suggested, a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such recovery is a recognition of the loss of a chance of survival as a distinct compensable injury caused by the defendant's negligence, to be distinguished from the loss of life in wrongful death cases, and there is no variance from the usual burden in proving that distinct loss.

Thus, in a medical malpractice case^[8] seeking damages for the loss of a less-than-even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the tortfeasor's action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance, which is the only item of damages at issue in such a case.

All experts testified that Smith had some chance of survival if he had been treated immediately after the August 1987 x-ray, and that he had virtually no chance of survival in October 1988 after he went almost fifteen months without treatment because of the Department's negligence. Smith's chance of survival in August 1987, though not better than even, was still a chance that was denied him as a result of the Department's failure to meet its standard of care. That chance had some value when viewed from the standpoint of the tort victim and his heirs, and that value is the appropriate focus of the analysis in this case.

III

Courts and commentators have recognized three possible methods of valuation of the loss of a chance of survival in professional malpractice cases.^[9]

The first, and the method we adopt today in this decision, is for the factfinder— judge or jury—to focus on the chance of survival lost on account of malpractice as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages.

The second method, as advocated by plaintiffs, is to allow full survival and wrongful death damages for the loss of life partially caused by malpractice, without regard to the chance of survival. We reject this argument, agreeing with the court of appeal that full recovery is not available for deprivation of a chance of survival of less than fifty percent. To allow full recovery would ignore the claimants' inability to prove by a preponderance of the evidence that the malpractice victim would have survived but for the malpractice, which is a requirement for full recovery.

[548] The third method, and the method adopted by the court of appeal in this case, is to compute the compensable chance as "the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1382 (1981). Professor King's percentage-probability-of-loss theory estimates "the compensable value of the victim's life if he survived" and reduced that estimate according to the percentage chance of survival at the time of the malpractice. Id. This method has gained acceptance by the courts and commentators because of its pragmatic appeal, providing concrete guidelines for calculating damages and alleviating the perceived "pulling out of the hat problem" allegedly associated with the method that we adopt today. See Borgren v. United States, 723 F.Supp. 581, 582-83 (D.Kan.1989).

Our point of disagreement with the court of appeal's method of computing damages for the loss of a chance of survival is its rigid use of a precise mathematical formula, based on imprecise percentage chance estimates applied to estimates of general damages that never occurred, to arrive at a figure for an item of general damages that this court has long recognized cannot be calculated with mathematical precision. See Boutte v. Hargrove, 290 So.2d 319, 322 (La.1974); Walton v. William Wolf Baking Co., 406 So.2d 168, 175 (La.1981). When these total hypothetical damages are reduced by a numerical factor determined from evidence of percentage rates of survival for certain periods after discovery of the disease at various stages of the disease, the uncertainty progresses geometrically.

The starting point of our analysis is to recognize that the loss of a less-than-even chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. Next, we recognize that the factfinder should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the claimants for that particular cognizable loss. On the other hand, the approach of the court of appeal requires the factfinder first to make a hypothetical determination of the value of survival and wrongful death claims that are not really at issue and then to discount that value mathematically. This mathematical discounting of the subjective valuation of inapplicable claims does not magically make that approach more precise or more accurate than simply allowing the factfinder to value directly the loss of a chance of survival that is the sole item of damages at issue in the case. Borgren, 723 F.Supp. at 583.

The lost chance of survival in professional malpractice cases has a value in and of itself that is different from the value of a wrongful death or survival claim.^[10] The [549] jury can calculate the lost chance of survival without going through the illusory exercise of setting a value for the wrongful death or survival claims and then mechanically reducing that amount by some consensus of the expert estimates of the percentage chance of survival. The methodology for fixing damages attributable to the loss of a chance of survival should not be so mechanistic as to require the jury merely to fill in the blanks on a verdict sheet with a consensus number for the percentage chance of survival and the total amount of damages, and then have the judge perform the multiplication task.

The calculation of damages for the loss of a chance of survival is not like the calculation of comparative fault damages. In the comparative fault context, the jury determines the entire amount of general and special damages actually sustained by the tort victim, which is an amount that would be awarded in the absence of contributory negligence. The percentage reduction merely implements the law of comparative fault in fixing the tortfeasor's total obligation. But in the loss of a chance of survival context, the award of damages for this particular loss is the "bottom line" figure. Any theoretical figure representing the amount the claimants would have been awarded if they had been successful in proving the defendant's fault more probably than not caused the loss of the tort victim's life is not a concrete figure that can properly be subjected to a reduction because of plaintiffs' failure of proof. Rather, the jury in a loss of a chance of survival case merely considers the same evidence considered by a jury in a survival and wrongful death action, and the loss-of-chance jury then reaches its general damages award for that loss on that evidence as well as other relevant evidence in the record.^[11]

This approach for valuation of the loss of a chance of survival is more appropriate than the method used by the court of appeal in that it allows the jury to render a verdict in the lump sum amount of damages attributable only to the lost chance of survival. This is a valuation of the only damages at issue— the lost chance—which is based on all of the relevant evidence in the record, as is done for any other measurement of general damages. Allowing the jury to consider all the evidence, including expert medical testimony regarding the percentage chances of survival, and to value directly the lost chance is more logical than requiring the jury to calculate damages for wrongful death when the physician's negligence was not the more probable cause of the death.

The method we adopt today will not leave the jury without any guidance or any factors to consider. The jury will be allowed to consider an abundance of evidence and factors, including evidence of percentages of chance of survival along with evidence such as loss of support and loss of love and affection, and any other evidence bearing on the value of the lost chance. The jury's verdict of a lump sum amount of damages can be tested on appeal for support in the record by reviewing the percentage chances and the losses incurred by the tort victim and his or her heirs, and any other relevant evidence, thus providing assurance against speculative verdicts.

Because the plaintiffs in the present case have not been afforded in either lower court the benefit of the method of valuation of damages adopted in this opinion, we remand [550] the case to the trial court to render a decision in accordance with this method of valuation, on the basis of the present record and of any additional evidence that the trial court in its discretion may allow. Moreover, we instruct the trial court to consider and rule on the claim for the shock and emotional distress that the tort victim actually suffered, irrespective of the percentage chance of survival, upon learning that the Department's health care providers failed to inform him of his beginning stage of cancer at a time when something possibly could have been done to avoid the consequences.

For these reasons, the judgment of the court of appeal is set aside, and the case is remanded to the district court for further proceedings in accordance with this opinion.

MARCUS and VICTORY, JJ., dissent and assign reasons.

MARCUS, Justice (dissenting).

I dissent from the majority opinion. I agree with the method used by the court of appeal in measuring damages recoverable for the loss of a chance of survival. Acordingly, I respectfully dissent.

VICTORY, Justice, Dissenting.

I cannot agree with: (1) this Court's adoption in Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986), of the lost chance of survival doctrine as a part of Louisiana's medical malpractice law; or (2) with the majority's approach in the instant case in evaluating damages in lost chance of survival cases.

My disagreement with the Court's adoption of the lost chance of survival doctrine is both pragmatic and theoretical. From a pragmatic standpoint, the doctrine yields unfair results. How the doctrine of lost chance results in erroneous and inequitable outcomes is illustrated by the Court of Appeals of Maryland:

Because loss of chance of recovery is based on statistical probabilities, it might be appropriate to examine the statistical probabilities of achieving a "just" result with loss of chance damages ... To compare the two rules, assume a hypothetical group of 99 cancer patients, each of whom would have had a 331/3% chance of survival. Each received negligent medical care, and all 99 dies. Traditional tort law would deny recovery in all 99 cases because each patient had less than a 50% chance of recovery and the probable cause of death was the preexisting cancer not the negligence. Statistically, had all 99 received proper treatment, 33 would have lived and 66 would have died; so the traditional rule would have statistically produced 33 errors by denying recovery to all 99.

The lost chance rule would allow all 99 patients to recover, but each would recover 331/3% of the normal value of the case. Again, with proper care 33 patients would have survived. Thus, the 33 patients who statistically would have survived with proper care would receive only one-third of the appropriate recovery, while the 66 patients who dies as a result of the preexisting condition, not the negligence, would be overcompensated by one-third. The loss of chance rule would have produced errors in all 99 cases. [Emphasis added.]

Fennell v. Southern Maryland Hospital (1990), 320 Md. 776, 580 A.2d 206, 212-13 (declining to adopt the doctrine of loss of chance of survival [in Maryland]).

From a theoretical standpoint, the doctrine has no basis in Louisiana law. The sources of law in Louisiana are well defined—they are legislation and custom. La.Civ.Code art. 1. Legislation is "a solemn expression of legislative will." La.Civ.Code art. 2. Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. La.Civ.Code art. 3. In Louisiana, as in all codified systems, legislation is the superior source of law, and under no circumstances may custom abrogate legislation. La.Civ.Code art. 1, comment (a); La.Civ.Code art. 3. Courts may fashion equitable remedies only when no rule for a particular situation can be derived from legislation or custom. La.Civ.Code art. 4.

Louisiana R.S. 9:2794A(3) provides that the plaintiff in medical malpractice actions has the burden of proving by a preponderance of the evidence that as a proximate result of the lack of knowledge or skill or [551] failure to exercise the degree of care required, the plaintiff suffered injuries that would not otherwise have been incurred. Despite this direct expression of legislative will, this Court has decided that the plaintiff may win merely by showing that the negligence was a substantial factor in depriving the patient of some chance of life or recovery. The negligence need not be the only causative factor. It is enough that it increased the harm to the patient. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 2 (La. 10/17/94), 643 So.2d 1228, 1230; Hastings, 498 So.2d at 720. Therefore, the plaintiff does not have to shoulder the burden of proving that the patient would have survived if properly treated. He need only demonstrate that the decedent had a chance of survival or recovery which was denied him as a result of the defendant's negligence. Pfiffner, 94-0924, 94-0963, 94-0992, p. 2, 643 So.2d at 1230; Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1278 (La.1991).

In my view, the adoption of the lost chance of survival doctrine by this Court in Hastings, and the accompanying relaxed burden of proof in medical malpractice cases, flies in the face of a clear expression of legislative will and is an improper extension of judicial authority in violation of La.Civ. Code art. 4.

Now the Court adopts a method of valuation that will allow many judgments rendered under the doctrine virtually unreviewable. The modern procedural trend is to require the fact-finder to provide more information in reaching its verdict. See, e.g., La.Code Civ.P. arts. 1812-13 (regarding submission of special verdicts and interrogatories to the jury); and La.Code Civ.P. art. 1917 (regarding request for written reasons for judgment from the court in nonjury trials). The majority's approach ignores this trend and allows the jury to simply arrive at a damage figure without properly explaining the basis of the figure. This "rabbit-out-of-the-hat" approach will be virtually impossible to review on appeal under the manifest error standard. The reviewing court will have little idea of what chance of survival the jury determined was lost, thus little basis to determine if the jury was manifestly erroneous.

The "percentage probability test" proposed by Professor Joseph H. King, Jr., in his article entitled, Causation, Valuation, and Chance in Personal Injury Tort Cases Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981), is a much fairer and much more precise test than that adopted by the majority. It was used by Judge Norris in his opinion in the Court of Appeal in this case. Smith v. State of Louisiana, Department of Health and Hospitals, 26,280 (La.App.2d Cir. 12/9/94), 647 So.2d 653. Under this test, damages in lost chance of survival cases are measured according to the "percentage probability by which defendant's tortious conduct diminished the likelihood of achieving some more favorable result." King, supra at 1382. To illustrate, Professor King states:

[C]onsider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of a chance, and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's chance of surviving the heart attack would be 40% of the compensable value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death). The value placed on the patient's life would reflect such factors as his age, health, and earning potential, including the fact that he had suffered the heart attack and the assumption that he survived it. The 40% computation would be applied to that base figure.

King, supra at 1382.

This approach is much more sensible and fair than that proposed by the majority because it insures that the damages awarded redress the actual injury, which is the decreased chance of survival or recovery, not the actual death. Martin, 582 So.2d at 1278; Hastings, 498 So.2d at 720; Perez v. Las [552] Vegas Medical Center, 107 Nev. 1, 805 P.2d 589, 592 (1991). A majority of our sister states have adopted the "percentage probability test." See, e.g., Wollen v. DePaul Health Center, 828 S.W.2d 681, 685 (Mo.1992) (In recognizing the possibility of a lost chance cause of action, the Missouri Supreme Court stated, "damages can only be expressed by multiplying the lost life or limb by the chance of recovery lost."); Perez, 805 P.2d at 592 ("[D]amages are to be discounted to the extent that a preexisting condition likely contributed to the death."); DeBurkarte v. Louvar, 393 N.W.2d 131, 136 (Iowa 1986) ("We believe the better approach is to allow recovery, but only for the lost chance of survival."); Herskovits v. Group Health Cooperative, 99 Wash.2d 609, 664 P.2d 474, 479 (Wash.1983) ("Causing reduction of the opportunity to recover [loss of chance] by one's negligence, however, does not necessitate a total recovery against the negligent party for all damages caused by the victim's death."). I would follow the lead of these states and utilize this formula for calculating damages in lost chance of survival cases: Lost Chance of Survival Damages = (the percent of chance of survival lost due to negligence) multiplied by (the total amount of damages which are ordinarily allowed in wrongful death actions).

The majority claims this approach is too mechanistic. Yet, statistics and mathematics play important roles in many aspects of Louisiana personal injury litigation. For example, our law of comparative fault allows juries to award a sum of damages after evaluating and considering the evidence presented. Thereafter, the jury must allocate percentages of fault to both the plaintiff and defendant, if they are both at fault. These percentages are then applied to the total damages stated by the jury to reach the amount of damages actually awarded to the plaintiff. La.Civ.Code art. 2324; La.Code Civ.P. art. 1812. Neither this task nor the "percentage probability test" should be considered too mechanistic.

In sum, the majority rejects a fair and logical test accepted by almost all states that allow recovery for loss chance of survival in favor of a test used by almost no state and which will make many judgments unreviewable. I respectfully dissent.

[1] Chief Judge Morris A. Lottinger, Jr., Court of Appeal, First Circuit, sitting by assignment in place of former Justice James L. Dennis.

Kimball, J., not on panel. Rule IV, Part 2, § 3.

[2] The experts contrasted "extensive" stage with "limited" stage, in which the cancer is limited to one side of the thorax or treatable by one radiation point. Smith apparently was in the "limited" stage at the time of the first x-ray.

[3] While plaintiffs' petition asserts the unconstitutionality of the cap on medical malpractice damages set forth in La.Rev.Stat. 40:1299.39, this issue was bifurcated by joint agreement between the parties. This issue is thus not before us.

[4] From this testimony, the court concluded that a range of seven to twelve percent encompasses most of the experts' estimates.

[5] The court fixed the total damages as follows:

Wrongful death damages                 $450,000 (one-third each)Funeral expenses                          4,004Future lost earnings and value of household services                     250,343Survival action damages                  60,000                                       ________                                       $764,347

[6] The pre-existing condition causes the conceptual problem. The jury should focus on the damages that the defendant caused—the loss of a chance of avoiding a death that might not have occurred if the health care provider had performed properly. The court should instruct the jury to determine the amount of damages for this specific loss on the basis of all the evidence.

[7] Contrast Pfiffner v. Correa, 94-0992 (La. 10/17/94), 643 So.2d 1228, in which the plaintiffs failed to prove there was any chance of survival at the time of the alleged malpractice.

[8] This decision only addresses damages in a medical malpractice case and does not consider damages for loss of a chance of survival in cases against other types of tortfeasors. See Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024 (Okla. 1996). That decision is left for another day.

[9] While the loss of a chance of survival doctrine has spawned a plethora of commentary and has been recognized by a majority of the states, John D. Hodson, Medical Malpractice: "Loss of Chance" Casualty, 54 A.L.R.4th 10 (1987); Martin J. McMahon, Medical Malpractice: Measure and Elements of Damages in Actions Based on Loss of Chance, 81 A.L.R.4th 485 (1987), little attention has been given to the complex issue we focus on today of the appropriate methodology for calculating the value of the loss of a chance of survival.

[10] Valuation of the loss of a chance of survival in this medical malpractice case is similar to the valuation of the loss of a chance of recovery by judgment or settlement in a legal malpractice action in which a lawyer lets a case prescribe and the tort victim sues the lawyer for malpractice. In the early cases, a plaintiff could only recover by trying a "case-within-a-case"—that is, by proving that he or she would have prevailed on the underlying cause of action. If not, the plaintiff could not recover. (The parallel in the medical malpractice area is the jurisprudence that rejects entirely the loss of a chance of survival doctrine.) Recognizing the unfairness to tort victims who had a chance of recovery and lost it because of legal malpractice, the courts, including this one, modified the case-within-a-case doctrine somewhat by shifting the burden of proof to the negligent attorney. See Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La. 1982). Even under this approach, however, the jury must engage in a pretend exercise of measuring damages based on events that never in reality occurred or can occur.

The preferable approach in legal malpractice cases (although not yet adopted by a holding of this court) is to let the jury value the lost chance of recovery based on the value of the claim before prescription. See Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 1114-15 (La.1982) (Dennis, J., dissenting). Indeed, one commentator criticized the case-within-a-case approach as "speculative" and suggested it would be preferable just to let the jury value the lost chance of recovery. Richard G. Coggin, Attorney Negligence ... A Suit Within a Suit, 60 W.Va.L.Rev. 225, 234-35 (1965). As this commentator aptly noted, "[t]he major objection which has been raised to [the case-within-a-case] mode of proof is that it will require the present jury to `speculate' as to the amount of damages which the first jury, had it heard the case, would have assessed, thus bringing the question within the familiar `rule of certainty'" which permits recovery of only damages that are susceptible of determination with a reasonable degree of certainty. Id. at 234. Continuing, this commentator made the suggestion that the preferable methodology would be to present all relevant issues to the jury for its exclusive determination and noted that "[n]o substantial right of the defendant would be violated by such a course of action." Id. at 235. This commentator further noted that this approach would be consistent with the policy that "no wrong shall be without a remedy." Id.

[11] Evidence of loss of support, loss of love and affection and other wrongful death damages is relevant, but not mathematically determinative, in loss of a chance of survival cases, as is evidence of the percentage chance of survival at the time of the malpractice. The plaintiff may also present evidence of, and argue, other factors to the jury, such as that a ten percent chance of survival may be more significant when reduced from ten percent to zero than when reduced from forty to thirty percent. The jury may also consider such factors as that the victim, although not likely to survive, would have lived longer but for the malpractice.

Jeremiah C. Collins, Washington, D. C. (Allan A. Ryan, Jr., Washington, D. C., on brief), for appellant.

Edgar B. May, Washington, D. C. (Howard B. Silberberg, Arlington, Va., on brief), for appellees.

Before RUSSELL and WIDENER, Circuit Judges, and WATKINS, Senior District Judge.^[1]

WATKINS, Senior District Judge:

On May 9, 1972 the employer of the Plaintiff, Cecil Leathers, purchased a new Chevrolet Kingswood station wagon from an authorized General Motors dealer, and gave custody of it to Leathers to use in personal and business activities. On July 23, 1972, after the car had been driven about 2,000 miles without any difficulties, Leathers was involved in a serious accident. According to his testimony, which is not disputed, he was driving with his wife as a passenger on West Ox Road, Fairfax, Virginia, when he swerved sharply to the left, to avoid a dog. He further testified that at that time the steering gear locked; he could not turn to the right and the car went straight across the road and hit a tree.

That the vehicle in question was manufactured with an inherent steering defect is clear. Whether that defect was the proximate [1084] cause of the accident is in dispute. The appeal also raises a serious question arising from the argument to the jury of Plaintiffs' counsel.

Knowledge by Defendant of the defect is clearly established by three letters by Defendant to Office of Defects Investigation, National Highway Traffic Administration, Department of Transportation, and by a quotation from General Motors Dealer Service Technical Bulletin. These read as follows:

The probability and total configuration required to permit a steering system problem to occur has been described above. When these cars are driven on extremely wavy, rutted, or chuckhole filled roads in a manner which causes the car to pitch excessively, the frame cross-member occasionally may scoop up loose stones. These stones may be thrown up into the frame area adjacent to the steering coupling, and, while they will generally fall away, the possibility exists that a certain size stone, entering this area under just the right circumstances, might interfere with steering effort. A malfunction may only occur if a certain size and shape stone becomes wedged while the steering wheel is being turned left, and additional effort will often purge the stone through. Turning the steering wheel right will usually discharge the stone and return the steering system to normal operation. (May 2, 1972; App. 14)

* * * * * *

... In at least two cases . . the owners allege that interference occurred while they were attempting to steer to the right. All of our testing indicates that if a stone should become wedged between the flexible coupling and frame, it can only interfere with steering when the driver attempts to turn to the left not to the right. Turning the steering wheel to the right will dislodge a stone rather than interfere with the steering ... (November 21, 1972; App. 26)

* * * * * *

When these cars are driven on unpaved road surfaces particularly roads which are heavily graveled and which are extremely wavy, rutted or filled with chuck holes, at speeds which cause the car to pitch excessively, the front crossmember may scoop-up loose stones or gravel from the roadway. These stones may be thrown up into the engine compartment. The possibility exists that one of these stones may lodge between the steering coupling and the frame and cause increased steering effort or interference with steering control of the car when the steering wheel is turned to the left. (January 19, 1973; App. 26)

When these cars are driven on extremely wavy, rutted or chuck-hole filled roads in a manner which causes the car to pitch excessively, the frame crossmember occasionally may scoop up loose stones. These stones may be thrown up into the frame area adjacent to the steering coupling and, while they will generally fall away, the possibility exists that a certain size stone entering this area under just the right circumstances might interfere with steering coupling rotation and result in increased steering effort. (May 19, 1972; App. 17)

The letter of May 2, 1972 refers to the malfunction occurring only in a left turn but it claims only that a left turn "will often purge" the foreign object; and that turning the steering wheel right "will usually discharge the stone and return the steering system to normal operation."

The letter of November 21, 1972 claimed that interference could only occur "when the driver attempts to turn to the left not to the right" but it is silent as to how this interference can be overcome. The letter of January 19, 1973 is to the same effect.

The Dealer Service Technical Bulletin of May 19, 1972, contains no limitation to left turn origin, and does not negative the possibility that foreign matter may interfere with steering in either direction.

In its statement of proposed evidence, Defendant stated that it proposed to call [1085] one of its employees as an expert witness. This was not done, although apparently he was present in court.

Plaintiffs' expert did not appear in court in time for the trial.

The male plaintiff's testimony about an experiment in which plaintiffs' expert "shoved" "some stones and things like that" down into the steering mechanism of a car like the one plaintiff was driving was inconclusive as to the effect on steering.

Finally, the investigating officer testified that the male plaintiff was interviewed immediately after the accident. The response to the question as to what plaintiff had said about how the accident happened was "... he related to me that there had been an animal, a dog, that crossed the road in front of his path and he had to swerve to the left to avoid striking him." (App. 118). Note that there is no reference to any steering problem.

The road on which plaintiff was driving was eighteen feet wide; a typical secondary road, with low shoulder, quite curvy, a bumpy-type road with potholes that had been filled. On the road was a county sanitation dump, and the trucks using it often dropped debris.

Just before getting on West Ox Road, plaintiff had parked at two locations at each of which the parking area was partly black top and partly gravel.

It is clear that the car had been in areas where the physical condition of the road fell within the areas of danger described by General Motors. The parking lots and the road had loose gravel. The road was wavy, and filled with chuckholes. However, there was no testimony that the operation of the vehicle met the other prescribed conditions. It was operated within the posted twenty-five mile an hour limit. There was no testimony that it pitched, or that the front crossmember scooped up anything.

Defendant, having unsuccessfully moved for dismissal at the end of plaintiffs' case, again moved for dismissal at the end of the whole case, both for lack of primary negligence and lack of proximate causation. The motion was denied, although the court recognized that "[I]t is thin ... to get to the jury on the question of proximate cause, particularly ..." (App. 121). We agree with that appraisal, but are unable to find that it was such an abuse of discretion or such an exceptional circumstance as to justify a reversal on this ground alone. Aetna Casualty and Surety Co. v. Yeatts, 122 F.2d 350, 354 (4 Cir. 1941); Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946). The cases principally relied upon by Defendant do not lead to a different result. In Ford Motor Company v. McDavid, 259 F.2d 261, 266 (4 Cir. 1958) the excessive and abnormal tire wear could have been produced by any of a number of possible causes, with most of which the Defendant could have had no possible connection. Smith v. General Motors Corporation, 227 F.2d 210, 213-214 (5 Cir. 1955) involved far less probability than this case. General Motors Corporation v. Wolverine Insurance Co., 255 F.2d 8, 9 (6 Cir. 1958) was a case in which "... the inference of negligence clearly `stands equiponderant at best' with the contrary inferences relied upon by the defendant. It was, therefore, the duty of the district court to direct a verdict in favor of the defendant."

In his opening argument, Plaintiffs' counsel stated:

Mr. Leathers is going to live those 26.9 years disabled. We submit the disability was caused by the steering defect in a General Motors car.

I don't know, again, how to put a number on that. It's the loss of the use of your legs, to some extent, the loss of doing sports or hobbies which are athletic, the general limitation in your job duties, general limitation in your enjoyment of life, pain, further medical treatment over a period of 26.9 years. 26.9 years are a lot of years, somewhere close to 9,000 days.

I don't know how much you — how much you put a dollar value on it, but how much dollars would it be worth to you, $30 a day, $20, $300 a month? The only way he can be compensated is with money. [1086] He can't be compensated with a new leg or having his leg put back in good condition, and I ask that you consider that. (Emphasis added.) (App. 124)

Immediately upon conclusion of the opening argument, counsel for Defendant vigorously objected to the above-quoted remarks. The Court's response was:

I will admonish the jury to disregard it, if you want. It will make more of it than has already been made. I can tell them that is not what the evidence shows. (Emphasis added.) (App. 126)

Counsel for Defendant then twice asked for a mistrial, rather than have the Court "prove it up" which motion was denied.

After the verdict was recorded, Defendant renewed its motion for a directed verdict for lack of proof of negligence and causation. Although recognizing that it "is not the strongest case I have ever seen for the Plaintiff" the Court denied the motion. (App. 132)

Defendant then moved for judgment N.O.V. which was denied, and for a new trial on the basis of a "thin case" coupled with the Golden Rule argument of Plaintiffs' counsel, which motion was also denied.

Having found that submission of the case to the jury was not an abuse of discretion or an exceptional circumstance, we likewise conclude that the failure to grant a directed verdict at the end of the evidence or judgment N.O.V. after verdict was not in and of itself reversible error insofar as solely questions of negligence or proximate causation are concerned.

While we have no hesitation in condemning the argument of plaintiffs' counsel hereinabove quoted, we do not agree with the contention of Defendant's counsel that invoking the Golden Rule is, standing alone, necessarily reversible error; and the two Virginia cases cited do not go that far.

In Norfolk & Western Railway Co. v. Keatley, 211 Va. 507, 178 S.E.2d 516 (1971) plaintiff's counsel invited the jury to ask themselves "how much they would pay a doctor to relieve themselves from pain for one hour." While recognizing the impropriety of this argument, the Virginia Supreme Court refused to reverse a verdict for plaintiff where the defendant had neither requested a curative instruction nor moved for a mistrial.

In Seymour v. Richardson, 194 Va. 709, 75 S.E.2d 72 (1953) the classical Golden Rule argument was made that the jury should so do unto the plaintiff as they would wish it to be done to them. (75 S.E.2d at 81). Plaintiff's counsel objected, but it does not appear whether he moved for a mistrial or for a curative instruction. Although noting that plaintiff's argument "was improper and should not be repeated" (75 S.E.2d at 81) the Virginia Supreme Court held that improper damages had been allowed, and remanded for a new trial on the question of damages only.

While not as extreme an argument as in Klotz v. Sears, Roebuck & Co., 267 F.2d 53 (7 Cir. 1959) or as egregious as in Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5 Cir. 1975), in both of which the arguments were held to be reversible error, the argument in this "thin" case was serious error. Counsel for defendant was placed in an unnecessarily difficult and embarrassing position. To interrupt argument by plaintiffs' counsel might antagonize the jury, and would certainly emphasize the point. Both defendant's counsel and the court felt that a curative instruction would point up the argument and would "make more of it than has already been made."

Under the circumstances we conclude that Defendant's motion for a new trial should have been granted, and we so direct.

REVERSED AND REMANDED FOR A NEW TRIAL.

WIDENER, Circuit Judge (concurring and dissenting):

I concur with that portion of the court's opinion affirming the district court's denial of General Motors' motion for directed verdict; however, I respectfully dissent from that portion which reverses because of improper argument to the jury.

[1087] During closing argument, Leathers' attorney stated:

"I don't know, again, how to put a number on that. It's the loss of the use of your legs, to some extent, the loss of doing sports or hobbies which are athletic, the general limitation in your enjoyment of life, pain, further medical treatment over a period of 26.9 years. 26.9 years are a lot of years, somewhere close to 9,000 days.

"I don't know how much you — how you put a dollar value on it, but how much dollars would it be worth to you, $30 a day, $20, $300 a month? The only way he can be compensated is with money. He can't be compensated with a new leg or having his leg put back in good condition, and I ask you to consider that."

The attorney for the defendant did not object when the argument was made, but approached the bench and objected at the close of the argument.

The district court offered to admonish the jury to disregard the comment as improper argument, but pointed out that such an instruction could "make more of it than has already been made." General Motors rejected the court's offer to admonish, but rather moved for a mistrial, which motion was denied.

At the beginning of General Motors' closing argument, its attorney stated:

"I am asking — or all we are asking on both sides is that you bring to this the same type consideration that you would bring — you would want to have people bring to your trial." (Italics added.)

While the argument by Leathers' counsel is at least arguably a use of the word "you" in an impersonal sense, which of course is not error, General Motors' argument is clearly an improper use of the word. I am of opinion that, regardless of the propriety of the initial remark made by Leathers' attorney, General Motors cannot claim to have been prejudiced by Leathers' allegedly improper statement since its attorney reaffirmed Leathers' argument to the jury by stating "we are asking on both sides" that the same rule be invoked, and General Motors use of the word "you" was clearly not an impersonal one.

In my opinion, General Motors has waived any objection to Leathers' argument for three separate reasons. First, as previously discussed, it adopted the argument; second, it made no contemporaneous objection; third, it refused the offer of the court to admonish the jury.

No case has been found in Virginia which has reversed for such argument. See, e. g., Norfolk & Western R. R. Co. v. Keatley, 211 Va. 507, 178 S.E.2d 516 (1971); State Farm Ins. Co. v. Futrell, 209 Va. 266, 163 S.E.2d 181 (1968); Phillips v. Fulghum, 203 Va. 543, 125 S.E.2d 835 (1962); Cape Charles Flying Service v. Nottingham, 187 Va. 444, 47 S.E.2d 540 (1948); Seymour v. Richardson, 194 Va. 709, 75 S.E.2d 77 (1953); Crosswhite v. Barnes, 139 Va. 471, 124 S.E.2d 242 (1924); and Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384 (1920) (none of which reversed for like argument.)

Since the judge offered to instruct the jury to correct the argument, we must consider that as having been done. I find only one federal case which has reversed when such instructions were given. Klotz v. Sears, Roebuck & Co., 267 F.2d 53 (7th Cir.) cert. denied 361 U.S. 877, 80 S.Ct. 141, 4 L.Ed.2d 114 (1959). In Klotz, the plaintiff was awarded substantial damages for the loss of his left eye. Plaintiff's attorney, in closing argument, at least twice entreated the jurors to "do unto others as you would have them do unto you" and on several occasions challenged the defendant's attorney to say how much money he would take for one of his eyes. Plaintiff's attorney also referred to the price of an eye in a buy-sell arrangement, indicating that defendant had bought plaintiff's eye and the jury was to determine the selling price. At the close of the argument, plaintiff's attorney again invoked the golden rule. Some of these remarks were objected to and the trial court instructed the jury to disregard them. In reversing, the Seventh Circuit stated, "[t]he nature of the remarks, their number and repetition, when considered in connection with the record as a whole, evidences [1088] a deliberate appeal to the jury to substitute sympathy for judgment ..." 267 F.2d 55.

As previously noted, the remark of Leathers' counsel in closing argument is susceptible of the interpretation that it was a proper use of the word "you" in an impersonal sense. That aside, the remark was made only once and it does not seem to me to be "a deliberate appeal to the jury to substitute sympathy for judgment." In my opinion the argument in the setting of this case was not reversible error. Accord, e. g., Shroyer v. Kaufmann, 426 F.2d 1032 (7th Cir. 1970); Har-pen Truck Lines, Inc. v. Mills, 378 F.2d 705 (5th Cir. 1967); Roy v. Employers Mutual Casualty Co., 368 F.2d 902 (5th Cir. 1966).

[1] United States District Judge for the District of Maryland, sitting by designation.

[304] Michael G. Sarli with whom Gidley, Lovegreen & Sarli, Providence, R.I., was on brief for defendant, appellant.

Howard S. Ross with whom Shuman & Ross, Providence, R.I., was on brief, for plaintiffs, appellees.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal by defendant-appellant Dr. Henry G. Magendantz from a jury verdict finding him liable for medical malpractice. Plaintiff-appellee Jesse Forrestal brought suit against defendant for brain damage and an injury to his left clavicle allegedly sustained during his birth.^[1] Defendant raises four issues:

(1) whether it was error to admit the testimony of plaintiff's expert witness;

(2) whether plaintiff failed to prove that defendant's conduct was the proximate cause of plaintiff's brain damage;

(3) whether plaintiff's closing argument constituted reversible error; and

(4) whether the district court in its charge misstated the applicable negligence doctrine.

We affirm.

I. LEGAL AND FACTUAL FRAMEWORK

In order to understand the issues, we first set out the Rhode Island law on the standard of care in medical malpractice cases and then recite the basic facts. The law is found in Schenck v. Roger Williams General Hospital, 119 R.I. 510, 935, 382 A.2d 514, 517 (1978):

In medical malpractice cases, this court has repeatedly held that a physician's duty is not to cure, but to exercise the same degree of diligence and skill as physicians in good standing engaged in the same type of practice in similar localities ordinarily have and exercise in like cases. Marshall v. Tomaselli, R.I., [118 R.I. 190] 372 A.2d 1280 (1977); Wilkinson v. Vesey, [110 R.I. 606, 295 A.2d 676] supra; Bigney v. Fisher, 26 R.I. 402, 59 A. 72 (1904). This standard of care governs a physician's conduct at all times while a patient is under his care and includes the diagnosis as well as the treatment of the patient's ailment. With regard to the diagnosis of patient maladies, we expounded upon the standard of care required of a physician by stating in Wilkinson that he must "avail himself of all the scientific means and facilities available to him so that he can obtain the [305] best factual data upon which he can make a diagnosis * * *." Wilkinson v. Vesey, supra, 110 R.I. at 615-16, 295 A.2d at 683.

Since the jury found defendant liable, our exposition of the facts is made in the light most favorable to plaintiff, drawing all reasonable inferences in his favor and without evaluating the credibility of witnesses or the weight of the evidence. CVD, Inc. v. Raytheon Co., 769 F.2d 842, 848-49 (1st Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986); Computer Systems Engineering, Inc. v. Qantel Corp., 740 F.2d 59, 65 (1st Cir.1984).

Defendant was the obstetrician who treated Jesse's mother during her pregnancy and delivered Jesse on May 4, 1980. Twenty-six days after Jesse's birth, Dr. Richard Rosen, Jesse's pediatrician, found a fracture of Jesse's left clavicle. Dr. Rosen attributed the fracture to trauma suffered by Jesse at the time of his birth.

When Jesse was about eighteen months old, he began to exhibit seizure phenomena; his head turned to the right or left and his right or left upper extremity exhibited tremors and quivering. The seizures lasted five seconds. The frequence of the seizures increased over time. Dr. Rosen referred Jesse to Dr. Taranath Shetty, a specialist in pediatric neurology and electroencephalograms. Dr. Shetty examined Jesse and concluded that brain damage was the cause of the seizures.

The hospital at which Jesse was born was rated as Class 3, meaning that it was a state of the art facility with the most modern obstetrical equipment available. It was used for high risk obstetrical patients.

Although the hospital provided the equipment necessary for determining, prior to delivery, the relation of the width of the mother's pelvic opening to the size of the baby's head, and although defendant knew how to use the equipment, he did not do so. Defendant did not use the available ultrasound equipment to measure the biparietal diameter of Jesse's head in utero; he did not use the available X-ray pelvimetry to determine whether Jesse's head would fit through his mother's pelvic opening; nor did he use any instruments to measure the width of the pelvic opening of Jesse's mother, relying instead on measurements made by using his hand and fingers. Defendant acknowledged that it is important to make a determination prior to delivery of whether the baby will fit through the mother's pelvic opening.

During labor, defendant did not use electronic fetal monitoring, which was available. In delivering Jesse, defendant used a forceps on the baby's head. He used the forceps first to turn Jesse's head, removed them, and then used them again to pull Jesse through the birth canal. Defendant performed an episiotomy on Jesse's mother to help the head out of the birth canal; that is, he cut a slit in the mother's vulvar orifice. Defendant decided to use forceps after Jesse's mother had two contractions. It was defendant's opinion that Jesse could have been delivered without the use of forceps if his mother had labored for another hour or two.

II. THE ADMISSION OF EXPERT TESTIMONY

The testimony of Dr. John F. Hillabrand, plaintiff's expert, was presented by a videotape deposition. The exclusion or admission of testimony is governed by the Federal Rules of Evidence in diversity cases, as well as in all others. Ricciardi v. Children's Hospital Medical Center, 811 F.2d 18, 21 (1st Cir.1987). We, therefore, turn to Federal Rule of Evidence 702 which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The admission of expert testimony under Federal Rule of Evidence 702 is within the discretion of the district court and will be reversed only for an abuse of discretion. Escolastica DaSilva v. American Brands, [306] Inc., 845 F.2d 356, 361 (1st Cir.1988); Marshall v. Perez Arguaga, 828 F.2d 845, 851 (1st Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1027, 98 L.Ed.2d 991 (1988); Allied International, Inc. v. International Longshoremen's Association, 814 F.2d 32, 40 (1st Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 79, 98 L.Ed.2d 41 (1987). There can be no question of Dr. Hillabrand's qualifications. He is a board certified obstetrician and delivered babies from 1938 to January 1, 1986, when he retired. The only abuse of discretion here would have been the blanket exclusion of Dr. Hillabrand's testimony.

Nor was there any reason for excluding the testimony on the basis of Rule 703, which states:

The fact or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the fact or data need not be admissible in evidence. [Emphasis added.]

Dr. Hillabrand based his opinions on his review of all the hospital and medical records pertaining to the mother and the baby, the reports of all the doctors who had been consulted by the attending physicians, and the depositions of the doctors that had been taken prior to his own deposition. This is one of the standard methods of laying the foundation for an expert's opinion in medical malpractice cases. The other methods are the use of a lengthy hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. The method used here is best suited to deposition testimony that is to be used at the trial.

Defendant advances two arguments for the exclusion of Dr. Hillabrand's testimony: that it relied on the opinion of another; and that his opinion that hypoxia causing brain damage was precipitated during the birthing process was "based upon a pyramiding of erroneous inferences." We discuss Dr. Hillabrand's testimony in detail in the next section of the opinion. It suffices to say now that the defendant's first argument is factually inaccurate, and the second is directed to credibility, not admissibility.

III. THE PROXIMATE CAUSE ISSUE

Defendant argues that he was entitled to either a directed verdict or a new trial because "plaintiff failed to prove to a reasonable degree of medical probability that his seizure disorder was proximately caused by an hypoxic event occurring at birth."

Hypoxia is defined as "low oxygen content or tension; deficiency of oxygen in the inspired air." Dorland's Medical Dictionary 755 (25th ed. 1974). Defendant does not deny that hypoxia in the brain can cause damage resulting in the symptoms exhibited by Jesse. His argument is that plaintiff did not prove that hypoxia caused Jesse's seizures, and that defendant's negligence was the cause of the hypoxia.

We agree with defendant that the Rhode Island law on proximate cause in the context of a medical malpractice case is controlling. The latest case on the subject is Gray v. Stillman White Co., Inc., 522 A.2d 737 (R.I.1987), in which the Rhode Island Supreme Court held:

It is well settled in this state that when expert medical testimony is offered to establish a causal relationship between a defendant's act or omission and the plaintiff's injury, "such testimony must speak in terms of `probabilities' rather than `possibilities.'" Doctor Fischbein's report states that "[i]n the absence of any other identified cause for Justin's high blood lead levels during 1976-1977, it is likely and consistent with reports in the medical literature that the parental occupation in this case was significant." The words "likely" and "consistent with" do not connote "probability." Evans v. Liguori, 118 R.I. 389, 397-98, 374 A.2d 774, 778 (1977) (testimony that decedent's symptoms are "consistent with" suicidal intent "merely begs" question of causal relationship). Hence, Dr. Fischbein does not speak in terms of probabilities, and his observations fail to provide the essential [307] evidentiary basis on which proximate causation can be properly assessed.

Id. at 741-42.

Defendant focuses on the report of Dr. Shetty who, at the request of Jesse's pediatrician, made a neurological examination of the boy's brain. The pertinent portion of Dr. Shetty's report states: "IMPRESSION: Focal seizure disorder refractory to Dilantin therapy. History and the right upgoing toe noticed on exam suggests that cerebral hypoxia in the perinatal period is the most likely cause here." (Emphasis added.) Perinatal is defined as "pertaining to or occurring in the period shortly before or after birth." Dorland's Medical Dictionary 1163-64 (25th ed. 1974).

The report was admitted in evidence and the district court ruled that the phrase "most likely cause" met the Rhode Island standard of causation in a medical malpractice case. Although the report was properly admitted in evidence under the Federal Rules, we think the court erred in its ruling on the standard of proof. It was bound to apply the substantive law of Rhode Island. Under the doctrine of Erie R. Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), "federal courts and Congress are constitutionally precluded from displacing state substantive law with federal substantive rules in diversity actions." McInnis v. A.M.F., Inc., 765 F.2d 240, 244 (1st Cir.1985). See also Ricciardi v. Children's Hospital Medical Center, 811 F.2d at 21. In light of the statement by the Rhode Island Supreme Court that the word "likely" does not connote "probability," the district court erred in equating "most likely" with "probability." This means that Dr. Shetty's statement could not be used as a basis for finding that cerebral hypoxia during the perinatal period was the proximate cause of plaintiff's brain damage.

The question, therefore, is whether there was other competent evidence in the record from which it could be found that defendant was negligent and thus caused plaintiff's brain damage. Our review of the record, as already noted, is weighted heavily in favor of plaintiff. In order to set aside a verdict, it must be against the clear weight of the evidence or based upon evidence which is false or will result in a clear miscarriage of justice. And the district court's decision that there was sufficient evidence for the verdict will be overturned only if there was an abuse of discretion. The question presented in a motion for judgment n.o.v. is even more circumscribed: whether after reviewing the record in the light most favorable to plaintiff and drawing all reasonable inferences in his favor, the evidence is sufficient to support the verdict. CVD, Inc. v. Raytheon, 769 F.2d at 848-49. See also Conway v. Electro Switch Corp., 825 F.2d 593, 598-99 (1st Cir.1987).

We start our review of the record with the testimony of defendant himself. He acknowledged that it would be "injudicious" to use forceps to deliver a baby through a pelvic opening which was too small to admit passage of the baby's head. Defendant agreed that the "injudicious" use of forceps could cause the injuries that Jesse suffered: a fracture of the left clavicle and a brain injury resulting in seizures. Defendant also testified that forceps would not have been necessary if the mother had been allowed to continue labor for another hour or two. Based on this testimony alone, it could be inferred that defendant's use of forceps was "injudicious," resulting in the injuries to the clavicle and the brain damage suffered by Jesse.

We next turn to the testimony of plaintiff's expert, Dr. Hillabrand. His opinion testimony was based upon reasonable medical certainty, and defendant did not contend that this failed to meet Rhode Island's "probability" rule. As already noted, Dr. Hillabrand examined the baby's mother prior to his testimony. He measured her pelvis and determined that the opening between the pelvic bones was 8.5 centimeters. It was Dr. Hillabrand's opinion that the pelvic opening "was inadequate for a normal sized baby to pass through." Dr. Hillabrand testified that the size of the pelvic opening was the same at the time of the birth of Jesse as when he made the measurements. He stated that the two most common problems associated with the birth [308] of a baby that is too large for the pelvic opening are "brain damage and shoulder distorchia."^[2] It was Dr. Hillabrand's opinion that defendant's use of forceps, combining rotation and extraction through the pelvis, "resulted in damage both to the baby's head and the baby's shoulder girdle."

It was Dr. Hillabrand's opinion that the use of forceps could have been avoided if the defendant had followed standard medical practice and determined the size of the mother's pelvic opening and the size of the baby's head prior to delivery. This could have been done by using the available ultrasound equipment, making instrument measurements of the pelvis, and using the available X-ray pelvimetry equipment. According to Dr. Hillabrand, if a proper predelivery investigation had been made, using the available medical equipment, it would have disclosed that the baby's head was too large to readily pass through the birth canal. The baby, therefore, should have been delivered by a Caesarian Section. If this had been done, Jesse would not have sustained the injuries to his shoulder and brain.

Dr. Hillabrand also testified that the mother's medical records showed that someone had measured her pelvic opening and noted that it measured 8.5 centimeters. According to Dr. Hillabrand, this indicated that the opening was of marginal size, at best, and should have alerted defendant that the size of the pelvic opening vis-a-vis the size of the baby's head had to be determined prior to birth.

Dr. Hillabrand stated: "It is quite certain that the trauma associated with a difficult labor and delivery were the things that were accountable for the damage to the baby's head and damage to the baby's shoulder girdle." In Dr. Hillabrand's opinion, the damage could and should have been avoided.

It is true that in the course of his testimony Dr. Hillabrand did state, in answering a question as to whether hypoxia was present during the birthing process, that the written report of Dr. Shetty so indicated. If this were the sole basis of Dr. Hillabrand's opinion, it would be inadmissible. But Dr. Hillabrand made it clear on both direct and cross-examination that his opinions on all aspects of defendant's conduct were based on his own knowledge and experience.

It was Dr. Hillabrand's opinion that the baby suffered some sort of hypoxia episode during birth which was the direct result of the delivery and the trauma associated with it. This opinion was based on Dr. Hillabrand's own knowledge and experience and did not depend on Dr. Shetty's report. It was also Dr. Hillabrand's opinion that Jesse suffered brain damage as a result of the use of the forceps by defendant. Based on this, the jury could have found that defendant's negligence caused Jesse's brain damage regardless of the grounds for Dr. Hillabrand's opinion about the onset of hypoxia. Dr. Hillabrand made it clear more than once during his testimony that defendant did not exercise the same degree of medical skill as physicians in good standing in the locality would have exercised. Based on our reading of the record and the applicable standard of review, we find no grounds for a directed verdict, judgment n.o.v., or a new trial.

IV. THE CLOSING ARGUMENT

During final argument, plaintiff's counsel stated: "I want you to picture yourself as if Jesse was your little boy." There was an objection and the court told the jury:

This is a question of argument, members of the jury, and you view it as such. You will be told you must decide this case impartially, without prejudice and without sympathy and without — based purely on the facts and the law as I give it to you. Proceed, Mr. Ross.

Counsel then asked the jury to put themselves "in the shoes of Jesse" or "in the shoes of his mother and father." Defense counsel objected and the court stated, "I don't know how else I can do it, Mr. Sarli, I have told the jury this is argument." The [309] argument continued, "and then say, members of the jury, if this were my child, what amount of money would I accept for my child to have Jesse's injuries and afflictions." Upon objection, the court stated: "Mr. Ross, don't press your luck. Carry on to something else. If it's not a question of monetary return to Mr. or Mrs. Joyce, then it's not what we're talking about here. Proceed." Continuing his argument, plaintiff's counsel suggested to the jury, "put yourself in Jesse's shoes." Defense counsel's objection was overruled, the court stating, "We're talking of Jesse now, we're not talking of Mr. and Mrs. Forrestal."

There can be little doubt that suggesting to the jury that it put itself in the shoes of a plaintiff to determine damages is improper argument. This so-called Golden Rule argument has been universally condemned "because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir.1978) (collecting cases), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980).

The question is whether the remarks constituted reversible error. There are a number of factors to be considered in making this determination. First and foremost is the deference due the district court's judgment. Mitchell v. Weaver, 806 F.2d 300, 302 (1st Cir.1986); Joan v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir.1985); Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 197 (4th Cir.1982), cert. denied, 460 U.S. 1102, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983). We agree with the Sixth Circuit that in assessing the effect of improper conduct by counsel,

a court must examine, on a case-by-case basis, the totality of the circumstances, including the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case (e.g. whether it is a close case), and the verdict itself.

City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 756 (6th Cir.1980).

We note first that, in addition to the instructions given during closing argument, the court instructed the jury at the start of the trial that it had

to be absolutely objective as you listen to this evidence, to be fair, to be impartial, and not to be swayed by pity or sympathy, but to look to the facts in the case and the evidence as it develops, and the instructions on the law that I will give to you, and apply that law to the facts.

In its final instructions, the court twice told the jury that the only evidence to consider was the testimony and the exhibits. In discussing damages, the court stated:

Now, damages must be proved, that is to say, the plaintiff must prove his damages by a fair preponderance of the evidence, just as he must prove liability by a fair preponderance of the evidence. Therefore, the amount that you may award as damages is subject to limitation in that you may make such award only to the amount upon your consideration of the evidence before you, and it is required insofar as humanly possible that you determine the precise amount which in your considered judgment constitutes a fair and adequate compensation for such damages as you find have been proved.

The rule of damages in actions of this type is compensatory, not punitive. The key determination is compensation for injuries and losses proven by a fair preponderance of the evidence to have occurred.

Again, I instruct you that the only evidence that you have is the evidence that you have listened to from the witnesses and the exhibits that have come in. The only way you determine damages, if you come to the question of damages in this case, is based upon the evidence that you have before you.

The court also stated near the conclusion of its charge:

It goes without saying, of course, that prejudice, sympathy or compassion should not be permitted to influence you [310] in the course of your deliberations. All that either party here is entitled to, or for that matter expects, is a verdict based upon your fair, scrupulous, and conscientious examination of the evidence and an application thereto of the law as it has been given to you by the Court. To yield either to sympathetic impulses or to considerations flowing from prejudice or bias would be to strike a blow at the very cornerstone of the system which you and I are sworn to uphold.

We think the district court effectively nullified the effect of the Golden Rule argument.

In considering the totality of the circumstances, we note first that the damages to be determined consisted solely of an amount to compensate Jesse for present and future pain and suffering. There were no bills for medical expenses, loss of wages or other items of specified amount. By its very nature, pain and suffering is hard not to personalize. Although we abjure jurors to be objective, the measurement of how much pain and suffering is worth in dollars is bound to start with a subjective reaction on the part of the jurors. We also note that, since the jury here obviously believed Dr. Hillabrand, this was not a close case. His testimony practically compelled a verdict in favor of plaintiff. Finally, and very significantly, defendant has not suggested that the amount of damages awarded ($100,000) was excessive.

V. THE JURY INSTRUCTIONS

Defendant asserts that the district court misstated the Rhode Island law as it applies to a physician's duty to use available scientific means in making a diagnosis and that such misstatement was prejudicial and requires a new trial. We find that there was no misstatement of the applicable Rhode Island law.

The instruction attacked stated:

Now, further, members of the jury, in considering this question [medical negligence], I instruct you:

"If a physician, as an aid to treatment or diagnosis, does not avail himself of all of the scientific means and facilities available to him so that he can obtain the best factual data upon which he can make a diagnosis and treatment of the patient, such an omission can be considered as evidence of negligence."

When we say he must avail himself of all scientific means and facilities, it merely means that the physician's conduct must be measured by the degree of diligence and skill possessed by other physicians in similar localities; that is, the physician should employ the scientific advancements available to him.

Defendant claims that, although this is a correct quote from Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676, 683 (1972), it did not take into consideration the modification of that language in Schenck v. Roger Williams General Hospital, 382 A.2d 514. Defendant objects to the use of the phrase "all of the scientific means and facilities available to him" and argues that under Schenck, this has to be modified to state "and there is competent evidence which indicates other skilled physicians would employ such resources." Defendant's selective parsing of Schenck obfuscates its clear meaning.

At no point in the opinion does Schenck suggest that the language of Wilkinson be modified. Schenck first stated the standard of care in medical malpractice cases, supra, at 304-05. Although the court acknowledged that the Wilkinson rule had been criticized,^[3] it rebutted the criticism and reaffirmed the Wilkinson standard:

The rule calling for use of all available scientific aids does not impose a greater burden upon a physician at the diagnostic stage of medical care than during actual treatment. In both instances, the conduct of a physician is measured by that degree of diligence and skill possessed by other physicians in similar localities. [311] While this court in Wilkinson never contemplated that a physician, in making a diagnosis, would be required to rule out any and "`all possible maladies to which the human race falls victim,'" it did recognize that in order to assess intelligently his patient's condition, a physician should employ the scientific advancements available to him. When a physician fails to conduct a test, consult a report, or perform an examination, i.e., utilize the scientific means of diagnosis at his disposal, and there is competent evidence which indicates other skilled physicians in similar localities would employ such resources, the diagnostician is not employing the tools of his profession in the skillful manner required of him by law. It is this kind of conduct, and no other, which the court in Wilkinson held to be evidence of negligence.

Schenck v. Hospital, 382 A.2d at 517-18.

Here, the court, just prior to giving the attached instruction, told the jury:

[The standard of care of a physician] has been defined as the employment of the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities, having due regard for the state of scientific knowledge at the time of treatment.

Both instructions, read conjunctively, accurately track the language of Schenck. The district court's instruction on Rhode Island malpractice law was correct.

In conclusion, we point out that defendant admitted that the three scientific diagnostic tools he failed to use, X-ray pelvimetry, ultrasound, and electronic fetal monitoring were available to him at the hospital where Jesse was born and that he knew how to use them. The fact that this equipment was available at the hospital used by defendant, along with Dr. Hillabrand's testimony, was "competent evidence which indicates other skilled physicians in similar localities would employ such resources."

Affirmed.

[1] The complaint also included Jesse's mother, Joyce, as a plaintiff and named the Rhode Island Group Health Association, Inc., as another defendant. Plaintiffs voluntarily dismissed the action against the Association prior to trial and the mother dismissed her claims against Dr. Magendantz at the close of the plaintiffs' case.

[2] We have been unable to find the word "distorchia" in either Dorland's Medical Dictionary or Webster's Third. We assume that the word intended was "distortion."

[3] In Wilkinson, the court stated that a physician must "avail himself of all the scientific means and facilities available to him so that he can obtain the best factual data upon which he can make a diagnosis...." Wilkinson v. Vesey, 295 A.2d at 683.

517 U.S. 559 (S.Ct. 1996)

[561] Andrew L. Frey argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, Evan M. Tager, Michael C. Quillen, Dennis J. Helfman, and David Cordero.

Michael H. Gottesman argued the cause for respondent. With him on the brief were Jonathan S. Massey, Andrew W. Bolt II, John W. Haley, Bruce J. McKee, Kenneth J. Chesebro, and Stephen K. Wollstein.^[1]

[562] JUSTICE STEVENS delivered the opinion of the Court.

The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a "`grossly excessive'" punishment on a tortfeasor. TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 454 (1993) (and cases cited). The wrongdoing involved in this case was the decision by a national distributor of automobiles not to advise its dealers, and hence their customers, of predelivery damage to new cars when the cost of repair amounted to less than 3 percent of the car's suggested retail price. The question presented [563] is whether a $2 million punitive damages award to the purchaser of one of these cars exceeds the constitutional limit.

I

In January 1990, Dr. Ira Gore, Jr. (respondent), purchased a black BMW sports sedan for $40,750.88 from an authorized BMW dealer in Birmingham, Alabama. After driving the car for approximately nine months, and without noticing any flaws in its appearance, Dr. Gore took the car to "Slick Finish," an independent detailer, to make it look "`snazzier than it normally would appear.'" 646 So. 2d 619, 621 (Ala. 1994). Mr. Slick, the proprietor, detected evidence that the car had been repainted.^[2] Convinced that he had been cheated, Dr. Gore brought suit against petitioner BMW of North America (BMW), the American distributor of BMW automobiles.^[3] Dr. Gore alleged, inter alia, that the failure to disclose that the car had been repainted constituted suppression of a material fact.^[4] The complaint prayed for $500,000 in compensatory and punitive damages, and costs.

At trial, BMW acknowledged that it had adopted a nationwide policy in 1983 concerning cars that were damaged in the course of manufacture or transportation. If the cost of repairing the damage exceeded 3 percent of the car's suggested [564] retail price, the car was placed in company service for a period of time and then sold as used. If the repair cost did not exceed 3 percent of the suggested retail price, however, the car was sold as new without advising the dealer that any repairs had been made. Because the $601.37 cost of repainting Dr. Gore's car was only about 1.5 percent of its suggested retail price, BMW did not disclose the damage or repair to the Birmingham dealer.

Dr. Gore asserted that his repainted car was worth less than a car that had not been refinished. To prove his actual damages of $4,000, he relied on the testimony of a former BMW dealer, who estimated that the value of a repainted BMW was approximately 10 percent less than the value of a new car that had not been damaged and repaired.^[5] To support his claim for punitive damages, Dr. Gore introduced evidence that since 1983 BMW had sold 983 refinished cars as new, including 14 in Alabama, without disclosing that the cars had been repainted before sale at a cost of more than $300 per vehicle.^[6] Using the actual damage estimate of $4,000 per vehicle, Dr. Gore argued that a punitive award of $4 million would provide an appropriate penalty for selling approximately 1,000 cars for more than they were worth.

In defense of its disclosure policy, BMW argued that it was under no obligation to disclose repairs of minor damage to new cars and that Dr. Gore's car was as good as a car with the original factory finish. It disputed Dr. Gore's assertion that the value of the car was impaired by the repainting and argued that this good-faith belief made a punitive award inappropriate. BMW also maintained that transactions in jurisdictions other than Alabama had no relevance to Dr. Gore's claim.

[565] The jury returned a verdict finding BMW liable for compensatory damages of $4,000. In addition, the jury assessed $4 million in punitive damages, based on a determination that the nondisclosure policy constituted "gross, oppressive or malicious" fraud.^[7] See Ala. Code §§ 6-11-20, 6-11-21 (1993).

BMW filed a post-trial motion to set aside the punitive damages award. The company introduced evidence to establish that its nondisclosure policy was consistent with the laws of roughly 25 States defining the disclosure obligations of automobile manufacturers, distributors, and dealers. The most stringent of these statutes required disclosure of repairs costing more than 3 percent of the suggested retail price; none mandated disclosure of less costly repairs.^[8] Relying on these statutes, BMW contended that its conduct was lawful in these States and therefore could not provide the basis for an award of punitive damages.

BMW also drew the court's attention to the fact that its nondisclosure policy had never been adjudged unlawful before this action was filed. Just months before Dr. Gore's case went to trial, the jury in a similar lawsuit filed by another Alabama BMW purchaser found that BMW's failure to disclose paint repair constituted fraud. Yates v. BMW of North America, Inc., 642 So. 2d 937 (Ala. 1993).^[9] Before the [566] judgment in this case, BMW changed its policy by taking steps to avoid the sale of any refinished vehicles in Alabama and two other States. When the $4 million verdict was returned in this case, BMW promptly instituted a nationwide policy of full disclosure of all repairs, no matter how minor.

In response to BMW's arguments, Dr. Gore asserted that the policy change demonstrated the efficacy of the punitive damages award. He noted that while no jury had held the policy unlawful, BMW had received a number of customer complaints relating to undisclosed repairs and had settled some lawsuits.^[10] Finally, he maintained that the disclosure statutes of other States were irrelevant because BMW had failed to offer any evidence that the disclosure statutes supplanted, rather than supplemented, existing causes of action for common-law fraud.

The trial judge denied BMW's post-trial motion, holding, inter alia, that the award was not excessive. On appeal, the Alabama Supreme Court also rejected BMW's claim that the award exceeded the constitutionally permissible amount. 646 So. 2d 619 (1994). The court's excessiveness inquiry applied the factors articulated in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-224 (Ala. 1989), and approved in Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21-22 (1991). 646 So. 2d, at 624-625. Based on its analysis, the court concluded that BMW's conduct was "reprehensible"; the nondisclosure was profitable for the company; the judgment "would not have a substantial impact upon [BMW's] financial position"; the litigation had been expensive; no criminal sanctions had been imposed on BMW for the same conduct; the award of no punitive [567] damages in Yates reflected "the inherent uncertainty of the trial process"; and the punitive award bore a "reasonable relationship" to "the harm that was likely to occur from [BMW's] conduct as well as . . . the harm that actually occurred." 646 So. 2d, at 625-627.

The Alabama Supreme Court did, however, rule in BMW's favor on one critical point: The court found that the jury improperly computed the amount of punitive damages by multiplying Dr. Gore's compensatory damages by the number of similar sales in other jurisdictions. Id., at 627. Having found the verdict tainted, the court held that "a constitutionally reasonable punitive damages award in this case is $2,000,000," id., at 629, and therefore ordered a remittitur in that amount.^[11] The court's discussion of the amount of its remitted award expressly disclaimed any reliance on "acts that occurred in other jurisdictions"; instead, the court explained that it had used a "comparative analysis" that considered Alabama cases, "along with cases from other jurisdictions, involving the sale of an automobile where the seller misrepresented the condition of the vehicle and the jury awarded punitive damages to the purchaser." ^[12]Id., at 628.

[568] Because we believed that a review of this case would help to illuminate "the character of the standard that will identify unconstitutionally excessive awards" of punitive damages, see Honda Motor Co. v. Oberg, 512 U. S. 415, 420 (1994), we granted certiorari, 513 U. S. 1125 (1995).

II

Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition. Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U. S. 247, 266-267 (1981); Haslip, 499 U. S., at 22. In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence. See TXO, 509 U. S., at 456; Haslip, 499 U. S., at 21, 22. Only when an award can fairly be categorized as "grossly excessive" in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. Cf. TXO, 509 U. S., at 456. For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve. We therefore focus our attention first on the scope of Alabama's legitimate interests in punishing BMW and deterring it from future misconduct.

No one doubts that a State may protect its citizens by prohibiting deceptive trade practices and by requiring automobile [569] distributors to disclose presale repairs that affect the value of a new car. But the States need not, and in fact do not, provide such protection in a uniform manner. Some States rely on the judicial process to formulate and enforce an appropriate disclosure requirement by applying principles of contract and tort law.^[13] Other States have enacted various forms of legislation that define the disclosure obligations of automobile manufacturers, distributors, and dealers.^[14] [570] The result is a patchwork of rules representing the diverse policy judgments of lawmakers in 50 States.

That diversity demonstrates that reasonable people may disagree about the value of a full disclosure requirement. Some legislatures may conclude that affirmative disclosure requirements are unnecessary because the self-interest of those involved in the automobile trade in developing and maintaining the goodwill of their customers will motivate them to make voluntary disclosures or to refrain from selling cars that do not comply with self-imposed standards. Those legislatures that do adopt affirmative disclosure obligations may take into account the cost of government regulation, choosing to draw a line exempting minor repairs from such a requirement. In formulating a disclosure standard, States may also consider other goals, such as providing a "safe harbor" for automobile manufacturers, distributors, and dealers against lawsuits over minor repairs.^[15]

We may assume, arguendo, that it would be wise for every State to adopt Dr. Gore's preferred rule, requiring full disclosure of every presale repair to a car, no matter how trivial and regardless of its actual impact on the value of the car. [571] But while we do not doubt that Congress has ample authority to enact such a policy for the entire Nation,^[16] it is clear that no single State could do so, or even impose its own policy choice on neighboring States. See Bonaparte v. Tax Court, 104 U. S. 592, 594 (1881) ("No State can legislate except with reference to its own jurisdiction. . . . Each State is independent of all the others in this particular").^[17] Similarly, one State's power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, Gibbons v. Ogden, 9 Wheat. 1, 194-196 (1824), but is also constrained by the need to respect the interests of other States, see, e. g., Healy v. Beer Institute, 491 U. S. 324, 335-336 (1989) (the Constitution has a "special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on [572] interstate commerce and with the autonomy of the individual States within their respective spheres" (footnote omitted)); Edgar v. MITE Corp., 457 U. S. 624, 643 (1982).

We think it follows from these principles of state sovereignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States.^[18] Before this Court Dr. Gore argued that the large punitive damages award was necessary to induce BMW to change the nationwide policy that it adopted in 1983.^[19] But by attempting to alter BMW's nationwide policy, Alabama would be infringing on the policy choices of other States. To avoid such encroachment, the economic penalties that a State such as Alabama inflicts on those who transgress its laws, whether the penalties take the form of legislatively authorized fines or judicially imposed punitive damages, must be supported by the State's interest in protecting its own consumers and its own economy. Alabama may insist that BMW adhere to a particular disclosure policy in that State. Alabama does not [573] have the power, however, to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents.^[20] Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions.

In this case, we accept the Alabama Supreme Court's interpretation of the jury verdict as reflecting a computation of the amount of punitive damages "based in large part on conduct that happened in other jurisdictions." 646 So. 2d, at 627. As the Alabama Supreme Court noted, neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful. "The only testimony touching the issue showed that approximately 60% of the vehicles that were refinished were sold in states where failure to disclose the repair was not an unfair trade practice." Id., at 627, n. 6.^[21] The Alabama Supreme Court therefore properly eschewed reliance on BMW's out-of-state conduct, id., at 628, and based its remitted award solely on [574] conduct that occurred within Alabama.^[22] The award must be analyzed in the light of the same conduct, with consideration given only to the interests of Alabama consumers, rather than those of the entire Nation. When the scope of the interest in punishment and deterrence that an Alabama court may appropriately consider is properly limited, it is apparent—for reasons that we shall now address—that this award is grossly excessive.

III

Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.^[23] Three guideposts, each of which indicates that BMW did not receive adequate notice of the magnitude of the sanction that Alabama might impose for adhering to the nondisclosure policy adopted in 1983, lead us to the conclusion that [575] the $2 million award against BMW is grossly excessive: the degree of reprehensibility of the nondisclosure; the disparity between the harm or potential harm suffered by Dr. Gore and his punitive damages award; and the difference between this remedy and the civil penalties authorized or imposed in comparable cases. We discuss these considerations in turn.

Degree of Reprehensibility

Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.^[24] As the Court stated nearly 150 years ago, exemplary damages imposed on a defendant should reflect "the enormity of his offense." Day v. Woodworth, 13 How. 363, 371 (1852). See also St. Louis, I. M. & S. R. Co. v. Williams, 251 U. S. 63, 66-67 (1919) (punitive award may not be "wholly disproportioned to the offense"); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 301 (1989) (O'Connor, J., concurring in part and dissenting in part) (reviewing court "should examine the gravity of the defendant's conduct and the harshness of the award of punitive damages").^[25] This principle reflects the accepted view that some wrongs are more blameworthy than others. Thus, we have said that [576] "nonviolent crimes are less serious than crimes marked by violence or the threat of violence." Solem v. Helm, 463 U. S. 277, 292-293 (1983). Similarly, "trickery and deceit," TXO, 509 U. S., at 462, are more reprehensible than negligence. In TXO, both the West Virginia Supreme Court and the Justices of this Court placed special emphasis on the principle that punitive damages may not be "grossly out of proportion to the severity of the offense." ^[26]Id., at 453, 462. Indeed, for Justice Kennedy, the defendant's intentional malice was the decisive element in a "close and difficult" case. Id., at 468.^[27]

In this case, none of the aggravating factors associated with particularly reprehensible conduct is present. The harm BMW inflicted on Dr. Gore was purely economic in nature. The presale refinishing of the car had no effect on its performance or safety features, or even its appearance for at least nine months after his purchase. BMW's conduct evinced no indifference to or reckless disregard for the health and safety of others. To be sure, infliction of economic injury, especially when done intentionally through affirmative acts of misconduct, id., at 453, or when the target is financially vulnerable, can warrant a substantial penalty. But this observation does not convert all acts that cause economic harm into torts that are sufficiently reprehensible to justify a significant sanction in addition to compensatory damages.

Dr. Gore contends that BMW's conduct was particularly reprehensible because nondisclosure of the repairs to his car formed part of a nationwide pattern of tortious conduct. Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument [577] that strong medicine is required to cure the defendant's disrespect for the law. See id., at 462, n. 28. Our holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance. See Gryger v. Burke, 334 U. S. 728, 732 (1948).

In support of his thesis, Dr. Gore advances two arguments. First, he asserts that the state disclosure statutes supplement, rather than supplant, existing remedies for breach of contract and common-law fraud. Thus, according to Dr. Gore, the statutes may not properly be viewed as immunizing from liability the nondisclosure of repairs costing less than the applicable statutory threshold. Brief for Respondent 18-19. Second, Dr. Gore maintains that BMW should have anticipated that its failure to disclose similar repair work could expose it to liability for fraud. Id., at 4-5.

We recognize, of course, that only state courts may authoritatively construe state statutes. As far as we are aware, at the time this action was commenced no state court had explicitly addressed whether its State's disclosure statute provides a safe harbor for nondisclosure of presumptively minor repairs or should be construed instead as supplementing common-law duties.^[28] A review of the text of the statutes, [578] however, persuades us that in the absence of a statecourt determination to the contrary, a corporate executive could reasonably interpret the disclosure requirements as establishing safe harbors. In California, for example, the disclosure statute defines "material" damage to a motor vehicle as damage requiring repairs costing in excess of 3 percent of the suggested retail price or $500, whichever is greater. Cal. Veh. Code Ann. § 9990 (West Supp. 1996). The Illinois statute states that in cases in which disclosure is not required, "nondisclosure does not constitute a misrepresentation or omission of fact." Ill. Comp. Stat., ch. 815, § 710/5 (1994).^[29] Perhaps the statutes may also be interpreted in another way. We simply emphasize that the record contains no evidence that BMW's decision to follow a disclosure policy that coincided with the strictest extant state statute was sufficiently reprehensible to justify a $2 million award of punitive damages.

[579] Dr. Gore's second argument for treating BMW as a recidivist is that the company should have anticipated that its actions would be considered fraudulent in some, if not all, jurisdictions. This contention overlooks the fact that actionable fraud requires a material misrepresentation or omission.^[30] This qualifier invites line-drawing of just the sort engaged in by States with disclosure statutes and by BMW. We do not think it can be disputed that there may exist minor imperfections in the finish of a new car that can be repaired (or indeed, left unrepaired) without materially affecting the car's value.^[31] There is no evidence that BMW acted in bad faith when it sought to establish the appropriate line between presumptively minor damage and damage requiring disclosure to purchasers. For this purpose, BMW could reasonably rely on state disclosure statutes for guidance. In this regard, it is also significant that there is no evidence that BMW persisted in a course of conduct after it had been adjudged unlawful on even one occasion, let alone repeated occasions.^[32]

Finally, the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in Haslip and TXO. Haslip, 499 U. S., at 5; TXO, 509 U. S., at 453. We accept, of course, the jury's finding that BMW suppressed [580] a material fact which Alabama law obligated it to communicate to prospective purchasers of repainted cars in that State. But the omission of a material fact may be less reprehensible than a deliberate false statement, particularly when there is a good-faith basis for believing that no duty to disclose exists.

That conduct is sufficiently reprehensible to give rise to tort liability, and even a modest award of exemplary damages does not establish the high degree of culpability that warrants a substantial punitive damages award. Because this case exhibits none of the circumstances ordinarily associated with egregiously improper conduct, we are persuaded that BMW's conduct was not sufficiently reprehensible to warrant imposition of a $2 million exemplary damages award.

Ratio

The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff. See TXO, 509 U. S., at 459; Haslip, 499 U. S., at 23. The principle that exemplary damages must bear a "reasonable relationship" to compensatory damages has a long pedigree.^[33] Scholars have identified a number of early English statutes authorizing the [581] award of multiple damages for particular wrongs. Some 65 different enactments during the period between 1275 and 1753 provided for double, treble, or quadruple damages.^[34] Our decisions in both Haslip and TXO endorsed the proposition that a comparison between the compensatory award and the punitive award is significant.

In Haslip we concluded that even though a punitive damages award of "more than 4 times the amount of compensatory damages" might be "close to the line," it did not "cross the line into the area of constitutional impropriety." 499 U. S., at 23-24. TXO, following dicta in Haslip, refined this analysis by confirming that the proper inquiry is "`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.' " TXO, 509 U. S., at 460 (emphasis in original), quoting Haslip, 499 U. S., at 21. Thus, in upholding the $10 million award in TXO, we relied on the difference between that figure and the harm to the victim that would have ensued if the tortious plan had succeeded. That difference suggested that the relevant ratio was not more than 10 to 1.^[35]

[582] The $2 million in punitive damages awarded to Dr. Gore by the Alabama Supreme Court is 500 times the amount of his actual harm as determined by the jury.^[36] Moreover, there is no suggestion that Dr. Gore or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy. The disparity in this case is thus dramatically greater than those considered in Haslip and TXO. ^[37]

Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. TXO, 509 U. S., at 458.^[38] Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, "we return to what we said . . . in Haslip: `We need not, and [583] indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness . . . properly enter[s] into the constitutional calculus.' " Id., at 458 (quoting Haslip, 499 U. S., at 18). In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely "raise a suspicious judicial eyebrow." TXO, 509 U. S., at 481 (O'Connor, J., dissenting).

Sanctions for Comparable Misconduct

Comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of excessiveness. As Justice O'Connor has correctly observed, a reviewing court engaged in determining whether an award of punitive damages is excessive should "accord `substantial deference' to legislative judgments concerning appropriate sanctions for the conduct at issue." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S., at 301 (opinion concurring in part and dissenting in part). In Haslip, 499 U. S., at 23, the Court noted that although the exemplary award was "much in excess of the fine that could be imposed," imprisonment was also authorized in the criminal context.^[39] In this [584] case the $2 million economic sanction imposed on BMW is substantially greater than the statutory fines available in Alabama and elsewhere for similar malfeasance.

The maximum civil penalty authorized by the Alabama Legislature for a violation of its Deceptive Trade Practices Act is $2,000; ^[40] other States authorize more severe sanctions, with the maxima ranging from $5,000 to $10,000.^[41] Significantly, some statutes draw a distinction between first offenders and recidivists; thus, in New York the penalty is $50 for a first offense and $250 for subsequent offenses. None of these statutes would provide an out-of-state distributor with fair notice that the first violation—or, indeed the first 14 violations—of its provisions might subject an offender to a multimillion dollar penalty. Moreover, at the time BMW's policy was first challenged, there does not appear to have been any judicial decision in Alabama or elsewhere indicating that application of that policy might give rise to such severe punishment.

The sanction imposed in this case cannot be justified on the ground that it was necessary to deter future misconduct without considering whether less drastic remedies could be expected to achieve that goal. The fact that a multimillion dollar penalty prompted a change in policy sheds no light on the question whether a lesser deterrent would have adequately protected the interests of Alabama consumers. In [585] the absence of a history of noncompliance with known statutory requirements, there is no basis for assuming that a more modest sanction would not have been sufficient to motivate full compliance with the disclosure requirement imposed by the Alabama Supreme Court in this case.

IV

We assume, as the juries in this case and in the Yates case found, that the undisclosed damage to the new BMW's affected their actual value. Notwithstanding the evidence adduced by BMW in an effort to prove that the repainted cars conformed to the same quality standards as its other cars, we also assume that it knew, or should have known, that as time passed the repainted cars would lose their attractive appearance more rapidly than other BMW's. Moreover, we of course accept the Alabama courts' view that the state interest in protecting its citizens from deceptive trade practices justifies a sanction in addition to the recovery of compensatory damages. We cannot, however, accept the conclusion of the Alabama Supreme Court that BMW's conduct was sufficiently egregious to justify a punitive sanction that is tantamount to a severe criminal penalty.

The fact that BMW is a large corporation rather than an impecunious individual does not diminish its entitlement to fair notice of the demands that the several States impose on the conduct of its business. Indeed, its status as an active participant in the national economy implicates the federal interest in preventing individual States from imposing undue burdens on interstate commerce. While each State has ample power to protect its own consumers, none may use the punitive damages deterrent as a means of imposing its regulatory policies on the entire Nation.

As in Haslip, we are not prepared to draw a bright line marking the limits of a constitutionally acceptable punitive damages award. Unlike that case, however, we are fully convinced that the grossly excessive award imposed in this [586] case transcends the constitutional limit.^[42] Whether the appropriate remedy requires a new trial or merely an independent determination by the Alabama Supreme Court of the award necessary to vindicate the economic interests of Alabama consumers is a matter that should be addressed by the state court in the first instance.

The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Breyer, with whom Justice O'Connor and Justice Souter join, concurring.

The Alabama state courts have assessed the defendant $2 million in "punitive damages" for having knowingly failed to tell a BMW automobile buyer that, at a cost of $600, it had repainted portions of his new $40,000 car, thereby lowering its potential resale value by about 10%. The Court's opinion, which I join, explains why we have concluded that this award, in this case, was "grossly excessive" in relation to legitimate punitive damages objectives, and hence an arbitrary deprivation of life, liberty, or property in violation of the Due Process Clause. See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 453, 454 (1993) (A "grossly excessive" punitive award amounts to an "arbitrary deprivation of property without due process of law") (plurality opinion). Members of this Court have generally thought, however, that if "fair procedures were followed, a judgment that is a product of that process is entitled to a strong presumption [587] of validity." Id., at 457. See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 40-42 (1991) (Kennedy, J., concurring in judgment). And the Court also has found that punitive damages procedures very similar to those followed here were not, by themselves, fundamentally unfair. Id., at 15-24. Thus, I believe it important to explain why this presumption of validity is overcome in this instance.

The reason flows from the Court's emphasis in Haslip upon the constitutional importance of legal standards that provide "reasonable constraints" within which "discretion is exercised," that assure "meaningful and adequate review by the trial court whenever a jury has fixed the punitive damages," and permit "appellate review [that] makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition." Id., at 20-21. See also id., at 18 ("[U]nlimited jury discretion—or unlimited judicial discretion for that matter—in the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities").

This constitutional concern, itself harkening back to the Magna Carta, arises out of the basic unfairness of depriving citizens of life, liberty, or property, through the application, not of law and legal processes, but of arbitrary coercion. Daniels v. Williams, 474 U. S. 327, 331 (1986); Dent v. West Virginia, 129 U. S. 114, 123 (1889). Requiring the application of law, rather than a decisionmaker's caprice, does more than simply provide citizens notice of what actions may subject them to punishment; it also helps to assure the uniform general treatment of similarly situated persons that is the essence of law itself. See Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112 (1949) (Jackson, J., concurring) ("[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally").

[588] Legal standards need not be precise in order to satisfy this constitutional concern. See Haslip, supra, at 20 (comparing punitive damages standards to such legal standards as "reasonable care," "due diligence," and "best interests of the child") (internal quotation marks omitted). But they must offer some kind of constraint upon a jury or court's discretion, and thus protection against purely arbitrary behavior. The standards the Alabama courts applied here are vague and open ended to the point where they risk arbitrary results. In my view, although the vagueness of those standards does not, by itself, violate due process, see Haslip, supra, it does invite the kind of scrutiny the Court has given the particular verdict before us. See id., at 18 ("[C]oncerns of . . . adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus"); TXO, supra, at 475 ("[I]t cannot be denied that the lack of clear guidance heightens the risk that arbitrariness, passion, or bias will replace dispassionate deliberation as the basis for the jury's verdict") (O'Connor, J., dissenting). This is because the standards, as the Alabama Supreme Court authoritatively interpreted them here, provided no significant constraints or protection against arbitrary results.

First, the Alabama statute that permits punitive damages does not itself contain a standard that readily distinguishes between conduct warranting very small, and conduct warranting very large, punitive damages awards. That statute permits punitive damages in cases of "oppression, fraud, wantonness, or malice." Ala. Code § 6-11-20(a) (1993). But the statute goes on to define those terms broadly, to encompass far more than the egregious conduct that those terms, at first reading, might seem to imply. An intentional misrepresentation, made through a statement or silence, can easily amount to "fraud" sufficient to warrant punitive damages. See § 6-11-20(b)(1) ("Fraud" includes "intentional . . . concealment of a material fact the concealing party had a [589] duty to disclose, which was gross, oppressive, or malicious and committed with the intention . . . of thereby depriving a person or entity of property") (emphasis added); § 6-11— 20(b)(2) ("Malice" includes any "wrongful act without just cause or excuse . . . [w]ith an intent to injure the . . . property of another") (emphasis added); § 6-11-20(b)(5) ("Oppression" includes "[s]ubjecting a person to . . . unjust hardship in conscious disregard of that person's rights"). The statute thereby authorizes punitive damages for the most serious kinds of misrepresentations, say, tricking the elderly out of their life savings, for much less serious conduct, such as the failure to disclose repainting a car, at issue here, and for a vast range of conduct in between.

Second, the Alabama courts, in this case, have applied the "factors" intended to constrain punitive damages awards in a way that belies that purpose. Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), sets forth seven factors that appellate courts use to determine whether or not a jury award was "grossly excessive" and which, in principle, might make up for the lack of significant constraint in the statute. But, as the Alabama courts have authoritatively interpreted them, and as their application in this case illustrates, they impose little actual constraint.

(a) Green Oil requires that a punitive damages award "bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred." Id., at 223. But this standard does little to guide a determination of what counts as a "reasonable" relationship, as this case illustrates. The record evidence of past, present, or likely future harm consists of (a) $4,000 of harm to Dr. Gore's BMW; (b) 13 other similar Alabama instances; and (c) references to about 1,000 similar instances in other States. The Alabama Supreme Court, disregarding BMW's failure to make relevant objection to the out-of-state instances at trial (as was the court's right), held that the last mentioned, out-of-state instances did not [590] count as relevant harm. It went on to find "a reasonable relationship" between the harm and the $2 million punitive damages award without "consider[ing] those acts that occurred in other jurisdictions. " 646 So. 2d 619, 628 (1994) (emphasis added). For reasons explored by the majority in greater depth, see ante, at 574-586, the relationship between this award and the underlying conduct seems well beyond the bounds of the "reasonable." To find a "reasonable relationship" between purely economic harm totaling $56,000, without significant evidence of future repetition, and a punitive award of $2 million is to empty the "reasonable relationship" test of meaningful content. As thus construed, it does not set forth a legal standard that could have significantly constrained the discretion of Alabama factfinders.

(b) Green Oil `s second factor is the "degree of reprehensibility" of the defendant's conduct. Green Oil, supra, at 223. Like the "reasonable relationship" test, this factor provides little guidance on how to relate culpability to the size of an award. The Alabama court, in considering this factor, found "reprehensible" that BMW followed a conscious policy of not disclosing repairs to new cars when the cost of repairs amounted to less than 3% of the car's value. Of course, any conscious policy of not disclosing a repair—where one knows the nondisclosure might cost the customer resale value—is "reprehensible" to some degree. But, for the reasons discussed by the majority, ante, at 575-580, I do not see how the Alabama courts could find conduct that (they assumed) caused $56,000 of relevant economic harm especially or unusually reprehensible enough to warrant $2 million in punitive damages, or a significant portion of that award. To find to the contrary, as the Alabama courts did, is not simply unreasonable; it is to make "reprehensibility" a concept without constraining force, i. e., to deprive the concept of its constraining power to protect against serious and capricious deprivations.

[591] (c) Green Oil `s third factor requires "punitive damages" to "remove the profit" of the illegal activity and "be in excess of the profit, so that the defendant recognizes a loss." Green Oil, 539 So. 2d, at 223. This factor has the ability to limit awards to a fixed, rational amount. But as applied, that concept's potential was not realized, for the court did not limit the award to anywhere near the $56,000 in profits evidenced in the record. Given the record's description of the conduct and its prevalence, this factor could not justify much of the $2 million award.

(d) Green Oil `s fourth factor is the "financial position" of the defendant. Ibid. Since a fixed dollar award will punish a poor person more than a wealthy one, one can understand the relevance of this factor to the State's interest in retribution (though not necessarily to its interest in deterrence, given the more distant relation between a defendant's wealth and its responses to economic incentives). See TXO, 509 U. S., at 462, and n. 28 (plurality opinion); id., at 469 (Kennedy, J., concurring in part and concurring in judgment); Haslip, 499 U. S., at 21-22; Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 300 (1989) (O'Connor, J., concurring in part and dissenting in part). This factor, however, is not necessarily intended to act as a significant constraint on punitive awards. Rather, it provides an open-ended basis for inflating awards when the defendant is wealthy, as this case may illustrate. That does not make its use unlawful or inappropriate; it simply means that this factor cannot make up for the failure of other factors, such as "reprehensibility," to constrain significantly an award that purports to punish a defendant's conduct.

(e) Green Oil `s fifth factor is the "costs of litigation" and the State's desire "to encourage plaintiffs to bring wrongdoers to trial." 539 So. 2d, at 223. This standard provides meaningful constraint to the extent that the enhancement it authorized is linked to a fixed, ascertainable amount approximating actual costs, even when defined generously to reflect [592] the contingent nature of plaintiffs' victories. But as this case shows, the factor cannot operate as a constraint when an award much in excess of costs is approved for other reasons. An additional aspect of the standard—the need to "encourage plaintiffs to bring wrongdoers to trial"—is a factor that does not constrain, but enhances, discretionary power—especially when unsupported by evidence of a special need to encourage litigation (which the Alabama courts here did not mention).

(f) Green Oil `s sixth factor is whether or not "criminal sanctions have been imposed on the defendant for his conduct." Ibid. This factor did not apply here.

(g) Green Oil `s seventh factor requires that "other civil actions" filed "against the same defendant, based on the same conduct," be considered in mitigation. Id., at 224. That factor did not apply here.

Thus, the first, second, and third Green Oil factors, in principle, might sometimes act as constraints on arbitrary behavior. But as the Alabama courts interpreted those standards in this case, even taking those three factors together, they could not have significantly constrained the court system's ability to impose "grossly excessive" awards.

Third, the state courts neither referred to, nor made any effort to find, nor enunciated any other standard that either directly, or indirectly as background, might have supplied the constraining legal force that the statute and Green Oil standards (as interpreted here) lack. Dr. Gore did argue to the jury an economic theory based on the need to offset the totality of the harm that the defendant's conduct caused. Some theory of that general kind might have provided a significant constraint on arbitrary awards (at least where confined to the relevant harm-causing conduct, see ante, at 570-574). Some economists, for example, have argued for a standard that would deter illegal activity causing solely economic harm through the use of punitive damages awards that, as a whole, would take from a wrongdoer the total cost of the [593] harm caused. See, e. g., S. Shavell, Economic Analysis of Accident Law 162 (1987) ("If liability equals losses caused multiplied by . .. the inverse of the probability of suit, injurers will act optimally under liability rules despite the chance that they will escape suit"); Cooter, Punitive Damages for Deterrence: When and How Much, 40 Ala. L. Rev. 1143, 1146-1148 (1989). My understanding of the intuitive essence of some of those theories, which I put in crude form (leaving out various qualifications), is that they could permit juries to calculate punitive damages by making a rough estimate of global harm, dividing that estimate by a similarly rough estimate of the number of successful lawsuits that would likely be brought, and adding generous attorney's fees and other costs. Smaller damages would not sufficiently discourage firms from engaging in the harmful conduct, while larger damages would "over-deter" by leading potential defendants to spend more to prevent the activity that causes the economic harm, say, through employee training, than the cost of the harm itself. See Galligan, Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 3, 17-20, 28-30 (1990). Larger damages might also "double count" by including in the punitive damages award some of the compensatory, or punitive, damages that subsequent plaintiffs would also recover.

The record before us, however, contains nothing suggesting that the Alabama Supreme Court, when determining the allowable award, applied any "economic" theory that might explain the $2 million recovery. Cf. Browning-Ferris, supra, at 300 (noting that the Constitution "does not incorporate the views of the Law and Economics School," nor does it "`require the States to subscribe to any particular economic theory' ") (O'Connor, J., concurring in part and dissenting in part) (quoting CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 92 (1987)). And courts properly tend to judge the rationality of judicial actions in terms of the reasons that were given, and the facts that were before the court, cf. TXO, [594] 509 U. S., at 468 (Kennedy, J., concurring in part and concurring in judgment), not those that might have been given on the basis of some conceivable set of facts (unlike the rationality of economic statutes enacted by legislatures subject to the public's control through the ballot box, see, e. g., FCC v. Beach Communications, Inc., 508 U. S. 307, 315 (1993)). Therefore, reference to a constraining "economic" theory, which might have counseled more deferential review by this Court, is lacking in this case.

Fourth, I cannot find any community understanding or historic practice that this award might exemplify and which, therefore, would provide background standards constraining arbitrary behavior and excessive awards. A punitive damages award of $2 million for intentional misrepresentation causing $56,000 of harm is extraordinary by historical standards, and, as far as I am aware, finds no analogue until relatively recent times. Amici for Dr. Gore attempt to show that this is not true, pointing to various historical cases which, according to their calculations, represented roughly equivalent punitive awards for similarly culpable conduct. See Brief for James D. A. Boyle et al. as Amici Curiae 4-5 (hereinafter Legal Historians' Brief). Among others, they cite Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763) (£1,000 said to be equivalent of $1.5 million, for warrantless search of papers); Huckle v. Money, 2 Wills. 205, 95 Eng. Rep. 768 (K. B. 1763) (£300, said to be $450,000, for 6-hour false imprisonment); Hewlett v. Cruchley, 5 Taunt. 277, 128 Eng. Rep. 696 (C. P. 1813) (£2,000, said to be $680,000, for malicious prosecution); Merest v. Harvey, 5 Taunt. 442, 128 Eng. Rep. 761 (C. P. 1814) (£500, said to be $165,000, for poaching). But amici apparently base their conversions on a mathematical assumption, namely, that inflation has progressed at a constant 3% rate of inflation. See Legal Historians' Brief 4. In fact, consistent, cumulative inflation is a modern phenomenon. See McCusker, How Much Is That in Real Money? A Historical Price Index for Use as a Deflator [595] of Money Values in the Economy of the United States, 101 Proceedings of American Antiquarian Society 297, 310, 323— 332 (1992). Estimates based on historical rates of valuation, while highly approximate, suggest that the ancient extraordinary awards are small compared to the $2 million here at issue, or other modern punitive damages figures. See Appendix to this opinion, infra, at 597-598 (suggesting that the modern equivalent of the awards in the above cases is something like $150,000, $45,000, $100,000, and $25,000, respectively). And, as the majority opinion makes clear, the record contains nothing to suggest that the extraordinary size of the award in this case is explained by the extraordinary wrongfulness of the defendant's behavior, measured by historical or community standards, rather than arbitrariness or caprice.

Fifth, there are no other legislative enactments here that classify awards and impose quantitative limits that would significantly cabin the fairly unbounded discretion created by the absence of constraining legal standards. Cf., e. g., Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (Supp. 1996) (punitive damages generally limited to greater of double damages, or $200,000, except cap does not apply to suits arising from certain serious criminal acts enumerated in the statute); Conn. Gen. Stat. § 52-240b (1995) (punitive damages may not exceed double compensatory damages in product liability cases); Fla. Stat. § 768.73(1) (Supp. 1993) (punitive damages in certain actions limited to treble compensatory damages); Ga. Code Ann. § 51-12-5.1(g) (Supp. 1995) ($250,000 cap in certain actions).

The upshot is that the rules that purport to channel discretion in this kind of case, here did not do so in fact. That means that the award in this case was both (a) the product of a system of standards that did not significantly constrain a court's, and hence a jury's, discretion in making that award; and (b) grossly excessive in light of the State's legitimate punitive damages objectives.

[596] The first of these reasons has special importance where courts review a jury-determined punitive damages award. That is because one cannot expect to direct jurors like legislators through the ballot box; nor can one expect those jurors to interpret law like judges, who work within a discipline and hierarchical organization that normally promotes roughly uniform interpretation and application of the law. Yet here Alabama expects jurors to act, at least a little, like legislators or judges, for it permits them, to a certain extent, to create public policy and to apply that policy, not to compensate a victim, but to achieve a policy-related objective outside the confines of the particular case.

To the extent that neither clear legal principles nor fairly obvious historical or community-based standards (defining, say, especially egregious behavior) significantly constrain punitive damages awards, is there not a substantial risk of outcomes so arbitrary that they become difficult to square with the Constitution's assurance, to every citizen, of the law's protection? The standards here, as authoritatively interpreted, in my view, make this threat real and not theoretical. And, in these unusual circumstances, where legal standards offer virtually no constraint, I believe that this lack of constraining standards warrants this Court's detailed examination of the award.

The second reason—the severe disproportionality between the award and the legitimate punitive damages objectives— reflects a judgment about a matter of degree. I recognize that it is often difficult to determine just when a punitive award exceeds an amount reasonably related to a State's legitimate interests, or when that excess is so great as to amount to a matter of constitutional concern. Yet whatever the difficulties of drawing a precise line, once we examine the award in this case, it is not difficult to say that this award lies on the line's far side. The severe lack of proportionality between the size of the award and the underlying punitive damages objectives shows that the award falls into the category [597] of "gross excessiveness" set forth in this Court's prior cases.

These two reasons taken together overcome what would otherwise amount to a "strong presumption of validity." TXO, 509 U. S., at 457. And, for those two reasons, I conclude that the award in this unusual case violates the basic guarantee of nonarbitrary governmental behavior that the Due Process Clause provides.

APPENDIX TO OPINION OF BREYER, J.

Although I recognize that all estimates of historic rates of inflation are subject to dispute, including, I assume, the sources below, those sources suggest that the value of the 18th and 19th century judgments cited by amici is much less than the figures amici arrived at under their presumption of a constant 3% rate of inflation.

In 1763, £1 (Eng.) was worth £1.73 Pennsylvania currency. See U. S. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, Series Z-585, p. 1198 (Bicentennial ed. 1975). For the period 1766-1772, £1 (Penn.) was worth $45.99 (U. S. 1991). See McCusker, How Much Is That in Real Money? A Historical Price Index for Use as a Deflator of Money Values in the Economy of the United States, 101 American Antiquarian Society 297, 333 (1992). Thus, £1 (Eng. 1763) is worth about $79.56 (U. S. 1991). Accounting for the 12% inflation of the U. S. dollar between 1991 and 1995 (when amici filed their brief), see Economic Indicators, 104th Cong., 2d Sess., p. 23 (Feb. 1996), £1 (Eng. 1763) is worth about $89.11 (U. S. 1995).

Calculated another way, £1 (Eng. 1763) is worth about £72.84 (Eng. 1991). See McCusker, supra, at 312, 342, 350. And £1 (Eng. 1991) is worth $1.77 (U. S. 1991). See 78 Fed. Reserve Bulletin A68 (Feb. 1992). Thus, £1 (Eng. 1763) amounts to about $128.93 (U. S. 1991). Again, accounting for inflation between 1991 and 1995, this amounts to about $144.40 (U. S. 1995).

[598] Thus, the above sources suggest that the £1,000 award in Wilkes in 1763 roughly amounts to between $89,110 and $144,440 today, not $1.5 million. And the £300 award in Huckle that same year would seem to be worth between $26,733 and $43,320 today, not $450,000.

For the period of the Hewlett and Merest decisions, £1 (Eng. 1813) is worth about £25.3 (Eng. 1991). See McCusker, supra, at 344, 350. Using the 1991 exchange rate, £1 (Eng. 1813) is worth about $44.78 (U. S. 1991). Accounting for inflation between 1991 and 1995, this amounts to about $50.16 (U. S. 1995).

Thus, the £2,000 and £500 awards in Hewlett and Merest would seem to be closer to $100,320 and $25,080, respectively, than to amici's estimates of $680,000 and $165,000.

Justice Scalia, with whom Justice Thomas joins, dissenting.

Today we see the latest manifestation of this Court's recent and increasingly insistent "concern about punitive damages that `run wild.' " Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 18 (1991). Since the Constitution does not make that concern any of our business, the Court's activities in this area are an unjustified incursion into the province of state governments.

In earlier cases that were the prelude to this decision, I set forth my view that a state trial procedure that commits the decision whether to impose punitive damages, and the amount, to the discretion of the jury, subject to some judicial review for "reasonableness," furnishes a defendant with all the process that is "due." See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 470 (1993) (Scalia, J., concurring in judgment); Haslip, supra, at 25-28 (Scalia, J., concurring in judgment); cf. Honda Motor Co. v. Oberg, 512 U. S. 415, 435-436 (1994) (Scalia, J., concurring). I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against [599] "unfairness"—neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreasonable" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable. See TXO, supra, at 471 (Scalia, J., concurring in judgment).

This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. See TXO, 509 U. S., at 453-462 (plurality opinion); id., at 478— 481 (O'Connor, J., dissenting); Haslip, supra, at 18. When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect— indeed, I do not feel justified in doing so. See, e. g., Witte v. United States, 515 U. S. 389, 406 (1995) (Scalia, J., concurring in judgment); Walton v. Arizona, 497 U. S. 639, 673 (1990) (Scalia, J., concurring in judgment in part and dissenting in part). Our punitive damages jurisprudence compels such a response. The Constitution provides no warrant for federalizing yet another aspect of our Nation's legal culture (no matter how much in need of correction it may be), and the application of the Court's new rule of constitutional law is constrained by no principle other than the Justices' subjective assessment of the "reasonableness" of the award in relation to the conduct for which it was assessed.

Because today's judgment represents the first instance of this Court's invalidation of a state-court punitive assessment as simply unreasonably large, I think it a proper occasion to discuss these points at some length.

I

The most significant aspects of today's decision—the identification of a "substantive due process" right against a "grossly excessive" award, and the concomitant assumption [600] of ultimate authority to decide anew a matter of "reasonableness" resolved in lower court proceedings—are of course not new. Haslip and TXO revived the notion, moribund since its appearance in the first years of this century, that the measure of civil punishment poses a question of constitutional dimension to be answered by this Court. Neither of those cases, however, nor any of the precedents upon which they relied, actually took the step of declaring a punitive award unconstitutional simply because it was "too big."

At the time of adoption of the Fourteenth Amendment, it was well understood that punitive damages represent the assessment by the jury, as the voice of the community, of the measure of punishment the defendant deserved. See, e. g., Barry v. Edmunds, 116 U. S. 550, 565 (1886); Missouri Pacific R. Co. v. Humes, 115 U. S. 512, 521 (1885); Day v. Woodworth, 13 How. 363, 371 (1852). See generally Haslip, supra, at 25-27 (Scalia, J., concurring in judgment). Today's decision, though dressed up as a legal opinion, is really no more than a disagreement with the community's sense of indignation or outrage expressed in the punitive award of the Alabama jury, as reduced by the State Supreme Court. It reflects not merely, as the concurrence candidly acknowledges, "a judgment about a matter of degree," ante, at 596; but a judgment about the appropriate degree of indignation or outrage, which is hardly an analytical determination.

There is no precedential warrant for giving our judgment priority over the judgment of state courts and juries on this matter. The only support for the Court's position is to be found in a handful of errant federal cases, bunched within a few years of one other, which invented the notion that an unfairly severe civil sanction amounts to a violation of constitutional liberties. These were the decisions upon which the TXO plurality relied in pronouncing that the Due Process Clause "imposes substantive limits `beyond which penalties may not go,' " 509 U. S., at 454 (quoting Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 78 (1907)); see also 509 U. S., [601] at 478-481 (O'Connor, J., dissenting); Haslip, supra, at 18. Although they are our precedents, they are themselves too shallowly rooted to justify the Court's recent undertaking. The only case relied upon in which the Court actually invalidated a civil sanction does not even support constitutional review for excessiveness, since it really concerned the validity, as a matter of procedural due process, of state legislation that imposed a significant penalty on a common carrier which lacked the means of determining the legality of its actions before the penalty was imposed. See Southwestern Telegraph & Telephone Co. v. Danaher, 238 U. S. 482, 489-491 (1915). The amount of the penalty was not a subject of independent scrutiny. As for the remaining cases, while the opinions do consider arguments that statutory penalties can, by reason of their excessiveness, violate due process, not a single one of these judgments invalidates a damages award. See Seaboard, supra, at 78-79; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 111-112 (1909); Standard Oil Co. of Ind. v. Missouri, 224 U. S. 270, 286, 290 (1912); St. Louis, I. M. & S. R. Co. v. Williams, 251 U. S. 63, 66-67 (1919).

More importantly, this latter group of cases—which again are the sole precedential foundation put forward for the rule of constitutional law espoused by today's Court—simply fabricated the "substantive due process" right at issue. Seaboard assigned no precedent to its bald assertion that the Constitution imposes "limits beyond which penalties may not go," 207 U. S., at 78. Waters-Pierce cited only Coffey v. County of Harlan, 204 U. S. 659 (1907), a case which inquired into the constitutionality of state procedure, id., at 662-663. Standard Oil simply cited Waters-Pierce, and St. Louis, I. M. & S. R. Co. offered in addition to these cases only Collins v. Johnston, 237 U. S. 502 (1915), which said nothing to support the notion of a "substantive due process" right against excessive civil penalties, but to the contrary asserted that the prescribing and imposing of criminal punishment were "functions peculiarly belonging to the several States," [602] id., at 509-510. Thus, the only authority for the Court's position is simply not authoritative. These cases fall far short of what is needed to supplant this country's longstanding practice regarding exemplary awards, see, e. g., Haslip, 499 U. S., at 15-18; id., at 25-28 (Scalia, J., concurring in judgment).

II

One might understand the Court's eagerness to enter this field, rather than leave it with the state legislatures, if it had something useful to say. In fact, however, its opinion provides virtually no guidance to legislatures, and to state and federal courts, as to what a "constitutionally proper" level of punitive damages might be.

We are instructed at the outset of Part II of the Court's opinion—the beginning of its substantive analysis—that "the federal excessiveness inquiry . . . begins with an identification of the state interests that a punitive award is designed to serve." Ante, at 568. On first reading this, one is faced with the prospect that federal punitive damages law (the new field created by today's decision) will be beset by the sort of "interest analysis" that has laid waste the formerly comprehensible field of conflict of laws. The thought that each assessment of punitive damages, as to each offense, must be examined to determine the precise "state interests" pursued, is most unsettling. Moreover, if those "interests" are the most fundamental determinant of an award, one would think that due process would require the assessing jury to be instructed about them.

It appears, however (and I certainly hope), that all this is a false alarm. As Part II of the Court's opinion unfolds, it turns out to be directed, not to the question "How much punishment is too much?" but rather to the question "Which acts can be punished?" "Alabama does not have the power," the Court says, "to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents." Ante, at 572-573. That may be true, though [603] only in the narrow sense that a person cannot be held liable to be punished on the basis of a lawful act. But if a person has been held subject to punishment because he committed an un lawful act, the degree of his punishment assuredly can be increased on the basis of any other conduct of his that displays his wickedness, unlawful or not. Criminal sentences can be computed, we have said, on the basis of "information concerning every aspect of a defendant's life," Williams v. New York, 337 U. S. 241, 250-252 (1949). The Court at one point seems to acknowledge this, observing that, although a sentencing court "[cannot] properly punish lawful conduct," it may in assessing the penalty "consider . . . lawful conduct that bears on the defendant's character." Ante, at 573, n. 19. That concession is quite incompatible, however, with the later assertion that, since "neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful," the Alabama Supreme Court "therefore properly eschewed reliance on BMW's outof-state conduct, . . . and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573-574. Why could the Supreme Court of Alabama not consider lawful (but disreputable) conduct, both inside and outside Alabama, for the purpose of assessing just how bad an actor BMW was?

The Court follows up its statement that "Alabama does not have the power . . . to punish BMW for conduct that was lawful where it occurred" with the statement: "Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions." Ante, at 572-573. The Court provides us no citation of authority to support this proposition—other than the barely analogous cases cited earlier in the opinion, see ante, at 571-572—and I know of none.

These significant issues pronounced upon by the Court are not remotely presented for resolution in the present case. There is no basis for believing that Alabama has sought to control conduct elsewhere. The statutes at issue merely [604] permit civil juries to treat conduct such as petitioner's as fraud, and authorize an award of appropriate punitive damages in the event the fraud is found to be "gross, oppressive, or malicious," Ala. Code § 6-11-20(b)(1) (1993). To be sure, respondent did invite the jury to consider out-of-state conduct in its calculation of damages, but any increase in the jury's initial award based on that consideration is not a component of the remitted judgment before us. As the Court several times recognizes, in computing the amount of the remitted award the Alabama Supreme Court—whether it was constitutionally required to or not—"expressly disclaimed any reliance on acts that occurred in other jurisdictions." Ante, at 567 (internal quotation marks omitted); see also ante, at 573-574.^[43] Thus, the only question presented by this case is whether that award, limited to petitioner's Alabama conduct and viewed in light of the factors identified as properly informing the inquiry, is excessive. The Court's sweeping (and largely unsupported) statements regarding the relationship of punitive awards to lawful or unlawful out-of-state conduct are the purest dicta.

III

In Part III of its opinion, the Court identifies "[t]hree guideposts" that lead it to the conclusion that the award in this case is excessive: degree of reprehensibility, ratio between punitive award and plaintiff's actual harm, and legislative [605] sanctions provided for comparable misconduct. Ante, at 574-585. The legal significance of these "guideposts" is nowhere explored, but their necessary effect is to establish federal standards governing the hitherto exclusively state law of damages. Apparently (though it is by no means clear) all three federal "guideposts" can be overridden if "necessary to deter future misconduct," ante, at 584—a loophole that will encourage state reviewing courts to uphold awards as necessary for the "adequat[e] protect[ion]" of state consumers, ibid. By effectively requiring state reviewing courts to concoct rationalizations—whether within the "guideposts" or through the loophole—to justify the intuitive punitive reactions of state juries, the Court accords neither category of institution the respect it deserves.

Of course it will not be easy for the States to comply with this new federal law of damages, no matter how willing they are to do so. In truth, the "guideposts" mark a road to nowhere; they provide no real guidance at all. As to "degree of reprehensibility" of the defendant's conduct, we learn that "`nonviolent crimes are less serious than crimes marked by violence or the threat of violence,' " ante, at 576 (quoting Solem v. Helm, 463 U. S. 277, 292-293 (1983)), and that "`trickery and deceit' " are "more reprehensible than negligence," ante, at 576. As to the ratio of punitive to compensatory damages, we are told that a "`general concer[n] of reasonableness . . . enter[s] into the constitutional calculus,' " ante, at 583 (quoting TXO, 509 U. S., at 458)—though even "a breathtaking 500 to 1" will not necessarily do anything more than "`raise a suspicious judicial eyebrow,' " ante, at 583 (quoting TXO, supra, at 481 (O'Connor, J., dissenting), an opinion which, when confronted with that "breathtaking" ratio, approved it). And as to legislative sanctions provided for comparable misconduct, they should be accorded "`substantial deference,' " ante, at 583 (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 301 (1989) (O'Connor, J., concurring in part and dissenting [606] in part)). One expects the Court to conclude: "To thine own self be true."

These crisscrossing platitudes yield no real answers in no real cases. And it must be noted that the Court nowhere says that these three "guideposts" are the only guideposts; indeed, it makes very clear that they are not—explaining away the earlier opinions that do not really follow these "guideposts" on the basis of additional factors, thereby "reiterat[ing] our rejection of a categorical approach." Ante, at 582. In other words, even these utter platitudes, if they should ever happen to produce an answer, may be overridden by other unnamed considerations. The Court has constructed a framework that does not genuinely constrain, that does not inform state legislatures and lower courts—that does nothing at all except confer an artificial air of doctrinal analysis upon its essentially ad hoc determination that this particular award of punitive damages was not "fair."

The Court distinguishes today's result from Haslip and TXO partly on the ground that "the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in Haslip and TXO. " Ante, at 579. This seemingly rejects the findings necessarily made by the jury—that petitioner had committed a fraud that was "gross, oppressive, or malicious," Ala. Code § 6-11-20(b)(1) (1993). Perhaps that rejection is intentional; the Court does not say.

The relationship between judicial application of the new "guideposts" and jury findings poses a real problem for the Court, since as a matter of logic there is no more justification for ignoring the jury's determination as to how reprehensible petitioner's conduct was (i. e., how much it deserves to be punished), than there is for ignoring its determination that it was reprehensible at all (i. e., that the wrong was willful and punitive damages are therefore recoverable). That the issue has been framed in terms of a constitutional right against unreasonably excessive awards should not obscure [607] the fact that the logical and necessary consequence of the Court's approach is the recognition of a constitutional right against unreasonably imposed awards as well. The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. See TXO, supra, at 471 (Scalia, J., concurring in judgment). And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional moment, subject to review in this Court. That is a stupefying proposition.

For the foregoing reasons, I respectfully dissent.

Justice Ginsburg, with whom The Chief Justice joins, dissenting.

The Court, I am convinced, unnecessarily and unwisely ventures into territory traditionally within the States' domain, and does so in the face of reform measures recently adopted or currently under consideration in legislative arenas. The Alabama Supreme Court, in this case, endeavored to follow this Court's prior instructions; and, more recently, Alabama's highest court has installed further controls on awards of punitive damages (see infra, at 613-614, n. 6). I would therefore leave the state court's judgment undisturbed, and resist unnecessary intrusion into an area dominantly of state concern.

I

The respect due the Alabama Supreme Court requires that we strip from this case a false issue: No impermissible "extraterritoriality" infects the judgment before us; the excessiveness [608] of the award is the sole issue genuinely presented. The Court ultimately so recognizes, see ante, at 573-574, but further clarification is in order.

Dr. Gore's experience was not unprecedented among customers who bought BMW vehicles sold as flawless and brand-new. In addition to his own encounter, Gore showed, through paint repair orders introduced at trial, that on 983 other occasions since 1983, BMW had shipped new vehicles to dealers without disclosing paint repairs costing at least $300, Tr. 585-586; at least 14 of the repainted vehicles, the evidence also showed, were sold as new and undamaged to consumers in Alabama. 646 So. 2d 619, 623 (Ala. 1994). Sales nationwide, Alabama's Supreme Court said, were admissible "as to the issue of a `pattern and practice' of such acts." Id., at 627. There was "no error," the court reiterated, "in the admission of the evidence that showed how pervasive the nondisclosure policy was and the intent behind BMW NA's adoption of it." Id., at 628. That determination comports with this Court's expositions. See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 462, and n. 28 (1993) (characterizing as "well-settled" the admissibility of "evidence of [defendant's] alleged wrongdoing in other parts of the country" and of defendant's "wealth"); see also Brief for Petitioner 22 (recognizing that similar acts, out-of-state, traditionally have been considered relevant "for the limited purpose of determining that the conduct before the [c]ourt was reprehensible because it was part of a pattern rather than an isolated incident").

Alabama's highest court next declared that the

"jury could not use the number of similar acts that a defendant has committed in other jurisdictions as a multiplier when determining the dollar amount of a punitive damages award. Such evidence may not be considered in setting the size of the civil penalty, because neither the jury nor the trial court had evidence before it showing in which states the conduct was wrongful." [609] 646 So. 2d, at 627 (emphasis in original) (footnote omitted).

Because the Alabama Supreme Court provided this clear statement of the State's law, the multiplier problem encountered in Gore's case is not likely to occur again. Now, as a matter of Alabama law, it is plainly impermissible to assess punitive damages by multiplication based on out-of-state events not shown to be unlawful. See, e. g., Independent Life and Accident Ins. Co. v. Harrington, 658 So. 2d 892, 902-903 (Ala. 1994) (under BMW v. Gore, trial court erred in relying on defendant insurance company's out-of-state insurance policies in determining harm caused by defendant's unlawful actions).

No Alabama authority, it bears emphasis—no statute, judicial decision, or trial judge instruction—ever countenanced the jury's multiplication of the $4,000 diminution in value estimated for each refinished car by the number of such cars (approximately 1,000) shown to have been sold nationwide. The sole prompt to the jury to use nationwide sales as a multiplier came from Gore's lawyer during summation. App. 31, Tr. 812-813. Notably, counsel for BMW failed to object to Gore's multiplication suggestion, even though BMW's counsel interrupted to make unrelated objections four other times during Gore's closing statement. Tr. 810— 811, 854-855, 858, 870-871. Nor did BMW's counsel request a charge instructing the jury not to consider out-of-state sales in calculating the punitive damages award. See Record 513-529 (listing all charges requested by counsel).

Following the verdict, BMW's counsel challenged the admission of the paint repair orders, but not, alternately, the jury's apparent use of the orders in a multiplication exercise. Curiously, during postverdict argument, BMW's counsel urged that if the repair orders were indeed admissible, then Gore would have a "full right" to suggest a multiplier-based disgorgement. Tr. 932.

[610] In brief, Gore's case is idiosyncratic. The jury's improper multiplication, tardily featured by petitioner, is unlikely to recur in Alabama and does not call for error correction by this Court.

Because the jury apparently (and erroneously) had used acts in other States as a multiplier to arrive at a $4 million sum for punitive damages, the Alabama Supreme Court itself determined "`the maximum amount that a properly functioning jury could have awarded.' " 646 So. 2d, at 630 (Houston, J., concurring specially) (quoting Big B, Inc. v. Cottingham, 634 So. 2d 999, 1006 (Ala. 1993)). The per curiam opinion emphasized that in arriving at $2 million as "the amount of punitive damages to be awarded in this case, [the court did] not consider those acts that occurred in other jurisdictions." 646 So. 2d, at 628 (emphasis in original). As this Court recognizes, the Alabama high court "properly eschewed reliance on BMW's out-of-state conduct and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573-574 (citation omitted). In sum, the Alabama Supreme Court left standing the jury's decision that the facts warranted an award of punitive damages—a determination not contested in this Court—and the state court concluded that, considering only acts in Alabama, $2 million was "a constitutionally reasonable punitive damages award." 646 So. 2d, at 629.

II

A

Alabama's Supreme Court reports that it "thoroughly and painstakingly" reviewed the jury's award, ibid. , according to principles set out in its own pathmarking decisions and in this Court's opinions in TXO and Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21 (1991). 646 So. 2d, at 621. The Alabama court said it gave weight to several factors, including BMW's deliberate ("reprehensible") presentation of refinished cars as new and undamaged, without disclosing that the value of those cars had been reduced by an estimated [611] 10%,^[44] the financial position of the defendant, and the costs of litigation. Id., at 625-626. These standards, we previously held, "impos[e] a sufficiently definite and meaningful constraint on the discretion of Alabama factfinders in awarding punitive damages." Haslip, 499 U. S., at 22; see also TXO, 509 U. S., at 462, n. 28. Alabama's highest court could have displayed its labor pains more visibly,^[45] but its judgment is nonetheless entitled to a presumption of legitimacy. See Rowan v. Runnels, 5 How. 134, 139 (1847) ("[T]his court will always feel itself bound to respect the decisions of the State courts, and from the time they are made will regard them as conclusive in all cases upon the construction of their own constitution and laws.").

We accept, of course, that Alabama's Supreme Court applied the State's own law correctly. Under that law, the State's objectives—"punishment and deterrence"—guide punitive damages awards. See Birmingham v. Benson, 631 So. 2d 902, 904 (Ala. 1994). Nor should we be quick to find a constitutional infirmity when the highest state court endeavored a corrective for one counsel's slip and the other's oversight—counsel for plaintiff's excess in summation, unobjected to by counsel for defendant, see supra, at 609—and when the state court did so intending to follow the process approved in our Haslip and TXO decisions.

B

The Court finds Alabama's $2 million award not simply excessive, but grossly so, and therefore unconstitutional. [612] The decision leads us further into territory traditionally within the States' domain,^[46] and commits the Court, now and again, to correct "misapplication of a properly stated rule of law." But cf. this Court's Rule 10 ("A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.").^[47] The Court is not well equipped [613] for this mission. Tellingly, the Court repeats that it brings to the task no "mathematical formula," ante, at 582, no "categorical approach," ibid., no "bright line," ante, at 585. It has only a vague concept of substantive due process, a "raised eyebrow" test, see ante, at 583, as its ultimate guide.^[48]

In contrast to habeas corpus review under 28 U. S. C. § 2254, the Court will work at this business alone. It will not be aided by the federal district courts and courts of appeals. It will be the only federal court policing the area. The Court's readiness to superintend state-court punitive damages awards is all the more puzzling in view of the Court's longstanding reluctance to countenance review, even by courts of appeals, of the size of verdicts returned by juries in federal district court proceedings. See generally 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2820 (2d ed. 1995). And the reexamination prominent in state courts ^[49] and in legislative arenas, see Appendix, [614] infra this page, serves to underscore why the Court's enterprise is undue.

For the reasons stated, I dissent from this Court's disturbance of the judgment the Alabama Supreme Court has made.

APPENDIX TO OPINION OF GINSBURG, J.

State Legislative Activity Regarding Punitive Damages

State legislatures have in the hopper or have enacted a variety of measures to curtail awards of punitive damages. At least one state legislature has prohibited punitive damages altogether, unless explicitly provided by statute. See N. H. Rev. Stat. Ann. § 507:16 (1994). We set out in this appendix some of the several controls enacted or under consideration in the States. The measures surveyed are: (1) caps on awards; (2) provisions for payment of sums to state agencies rather than to plaintiffs; and (3) mandatory bifurcated trials with separate proceedings for punitive damages determinations.

[615] I. Caps on Punitive Damages Awards

• Colorado —Colo. Rev. Stat. §§ 13-21-102(1)(a) and (3) (1987) (as a main rule, caps punitive damages at amount of actual damages).

• Connecticut —Conn. Gen. Stat. § 52-240b (1995) (caps punitive damages at twice compensatory damages in products liability cases).

• Delaware —H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would cap punitive damages at greater of three times compensatory damages, or $250,000).

• Florida —Fla. Stat. §§ 768.73(1)(a) and (b) (Supp. 1992) (in general, caps punitive damages at three times compensatory damages).

• Georgia —Ga. Code Ann. § 51-12-5.1 (Supp. 1995) (caps punitive damages at $250,000 in some tort actions; prohibits multiple awards stemming from the same predicate conduct in products liability actions).

• Illinois —H. 20, 89th Gen. Ass. 1995-1996 Reg. Sess. (enacted Mar. 9, 1995) (caps punitive damages at three times economic damages).

• Indiana —H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (caps punitive damages at greater of three times compensatory damages, or $50,000).

• Kansas —Kan. Stat. Ann. §§ 60-3701(e) and (f) (1994) (in general, caps punitive damages at lesser of defendant's annual gross income, or $5 million).

• Maryland —S. 187, 1995 Leg. Sess. (introduced Jan. 27, 1995) (in general, would cap punitive damages at four times compensatory damages).

• Minnesota —S. 489, 79th Leg. Sess., 1995 Reg. Sess. (introduced Feb. 16, 1995) (would require reasonable relationship between compensatory and punitive damages).

• Nevada —Nev. Rev. Stat. § 42.005(1) (1993) (caps punitive damages at three times compensatory damages if compensatory damages equal $100,000 or more, and at $300,000 if the compensatory damages are less than $100,000).

[616] • New Jersey —S. 1496, 206th Leg., 2d Ann. Sess. (1995) (caps punitive damages at greater of five times compensatory damages, or $350,000, in certain tort cases).

• North Dakota —N. D. Cent. Code § 32-03.2-11(4) (Supp. 1995) (caps punitive damages at greater of two times compensatory damages, or $250,000).

• Oklahoma —Okla. Stat., Tit. 23, §§ 9.1(B)—(D) (Supp. 1996) (caps punitive damages at greater of $100,000, or actual damages, if jury finds defendant guilty of reckless disregard; and at greatest of $500,000, twice actual damages, or the benefit accruing to defendant from the injury-causing conduct, if jury finds that defendant has acted intentionally and maliciously).

• Texas —S. 25, 74th Reg. Sess. (enacted Apr. 20, 1995) (caps punitive damages at twice economic damages, plus up to $750,000 additional noneconomic damages).

• Virginia —Va. Code Ann. § 8.01-38.1 (1992) (caps punitive damages at $350,000).

II. Allocation of Punitive Damages to State Agencies

• Arizona —H. R. 2279, 42d Leg., 1st Reg. Sess. (introduced Jan. 12, 1995) (would allocate punitive damages to a victims' assistance fund, in specified circumstances).

• Florida —Fla. Stat. §§ 768.73(2)(a)—(b) (Supp. 1992) (allocates 35% of punitive damages to General Revenue Fund or Public Medical Assistance Trust Fund); see Gordon v. State, 585 So. 2d 1033, 1035-1038 (Fla. App. 1991), aff'd, 608 So. 2d 800 (Fla. 1992) (upholding provision against due process challenge).

• Georgia —Ga. Code Ann. § 51-12-5.1(e)(2) (Supp. 1995) (allocates 75% of punitive damages, less a proportionate part of litigation costs, including counsel fees, to state treasury); see Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 540-543, 436 S. E. 2d 635, 637-639 (Ga. 1993) (upholding provision against constitutional challenge).

[617] • Illinois —Ill. Comp. Stat., ch. 735, § 5/2-1207 (1994) (permits court to apportion punitive damages among plaintiff, plaintiff's attorney, and Illinois Department of Rehabilitation Services).

• Indiana —H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (subject to statutory exceptions, allocates 75% of punitive damages to a compensation fund for violent crime victims).

• Iowa —Iowa Code § 668A.1(2)(b) (1987) (in described circumstances, allocates 75% of punitive damages, after payment of costs and counsel fees, to a civil reparations trust fund); see Shepherd Components, Inc. v. Brice PetridesDonohue & Assoc., Inc., 473 N. W. 2d 612, 619 (Iowa 1991) (upholding provision against constitutional challenge).

• Kansas —Kan. Stat. Ann. § 60-3402(e) (1994) (allocates 50% of punitive damages in medical malpractice cases to state treasury).

• Missouri —Mo. Rev. Stat. § 537.675 (1994) (allocates 50% of punitive damages, after payment of expenses and counsel fees, to Tort Victims' Compensation Fund).

• Montana —H. 71, 54th Leg. Sess. (introduced Jan. 2, 1995) (would allocate 48% of punitive damages to state university system and 12% to school for the deaf and blind).

• New Jersey —S. 291, 206th Leg., 1994-1995 1st Reg. Sess. (introduced Jan. 18, 1994); A. 148, 206th Leg., 1994— 1995 1st Reg. Sess. (introduced Jan. 11, 1994) (would allocate 75% of punitive damages to New Jersey Health Care Trust Fund).

• New Mexico —H. 1017, 42d Leg., 1st Sess. (introduced Feb. 16, 1995) (would allocate punitive damages to LowIncome Attorney Services Fund).

• Oregon —S. 482, 68th Leg. Ass. (enacted July 19, 1995) (amending Ore. Rev. Stat. §§ 18.540 and 30.925, and repealing Ore. Rev. Stat. § 41.315) (allocates 60% of punitive damages to Criminal Injuries Compensation Account).

[618] • Utah —Utah Code Ann. § 78-18-1(3) (1992) (allocates 50% of punitive damages in excess of $20,000 to state treasury).

III. Mandatory Bifurcation of Liability and Punitive Damages Determinations

• California —Cal. Civ. Code Ann. § 3295(d) (West Supp. 1995) (requires bifurcation, on application of defendant, of liability and damages phases of trials in which punitive damages are requested).

• Delaware —H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would require, at request of any party, a separate proceeding for determination of punitive damages).

• Georgia —Ga. Code Ann. § 51-12-5.1(d) (Supp. 1995) (in all cases in which punitive damages are claimed, liability for punitive damages is tried first, then amount of punitive damages).

• Illinois —H. 20, 89th Gen. Ass., 1995-1996 Reg. Sess. (enacted Mar. 9, 1995) (mandates, upon defendant's request, separate proceeding for determination of punitive damages).

• Kansas —Kan. Stat. Ann. §§ 60-3701(a) and (b) (1994) (trier of fact determines defendant's liability for punitive damages, then court determines amount of such damages).

• Missouri —Mo. Rev. Stat. §§ 510.263(1) and (3) (1994) (mandates bifurcated proceedings, on request of any party, for jury to determine first whether defendant is liable for punitive damages, then amount of punitive damages).

• Montana —Mont. Code Ann. § 27-1—221(7) (1995) (upon finding defendant liable for punitive damages, jury determines the amount in separate proceeding).

• Nevada —Nev. Rev. Stat. § 42.005(3) (1993) (if jury determines that punitive damages will be awarded, jury then determines amount in separate proceeding).

• New Jersey —N. J. Stat. Ann. §§ 2A:58C-5(b) and (d) (West 1987) (mandates separate proceedings for determination of compensatory and punitive damages).

[619] • North Dakota —N. D. Cent. Code § 32-03.2-11(2) (Supp. 1995) (upon request of either party, trier of fact determines whether compensatory damages will be awarded before determining punitive damages liability and amount).

• Oklahoma —Okla. Stat., Tit. 23, §§ 9.1(B)—(D) (Supp. 1995-1996) (requires separate jury proceedings for punitive damages); S. 443, 45th Leg., 1st Reg. Sess. (introduced Jan. 31, 1995) (would require courts to strike requests for punitive damages before trial, unless plaintiff presents prima facie evidence at least 30 days before trial to sustain such damages; provide for bifurcated jury trial on request of defendant; and permit punitive damages only if compensatory damages are awarded).

• Virginia —H. 1070, 1994-1995 Reg. Sess. (introduced Jan. 25, 1994) (would require separate proceedings in which court determines that punitive damages are appropriate and trier of fact determines amount of punitive damages).

[1] Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by Kenneth W. Starr, Paul T. Cappuccio, Christopher Landau, Richard A. Cordray, and Phillip D. Brady; for the American Council of Life Insurance et al. by Patricia A. Dunn, Stephen J. Goodman, Phillip E. Stano, and Theresa L. Sorota; for the American Tort Reform Association et al. by Victor E. Schwartz, Scott L. Winkelman, Sherman Joyce, and Fred J. Hiestand; for the Business Council of Alabama by Forrest S. Latta; for the Center for Claims Resolution by John D. Aldock and Frederick C. Schafrick; for the Chamber of Commerce of the United States of America by Timothy B. Dyk, Stephen A. Bokat, and Robin S. Conrad; for the Farmers Insurance Exchange et al. by Irving H. Greines, Robin Meadow, Barbara W. Ravitz, and Robert A. Olson; for the Life Insurance Company of Georgia et al. by Theodore B. Olson, Larry L. Simms, Theodore J. Boutrous, Jr., John K. Bush, Theodore J. Fischkin, and Marcus Bergh; for the National Association of Manufacturers by Carter G. Phillips and Jan Amundson; for the New England Council et al. by Stephen S. Ostrach; for Owens-Corning Fiberglas Corporation by Charles Fried, Michael W. Schwartz, and Karen I. Ward; for Owens-Illinois, Inc., by Griffin B. Bell and David L. Gray; for Pharmaceutical Research and Manufacturers of America by Andrew T. Berry; for the Product Liability Advisory Council, Inc., et al. by Malcolm E. Wheeler; for the TIG Insurance Company by Ellis J. Horvitz, Barry R. Levy, Frederic D. Cohen, and Mitchell C. Tilner; and for the Washington Legal Foundation et al. by Arvin Maskin, Steven Alan Reiss, Katherine Oberlies, Daniel J. Popeo, and Paul D. Kamenar.

Briefs of amici curiae urging affirmance were filed for the Alabama Trial Lawyers Association by Russell J. Drake; for the Association of Trial Lawyers of America by Jeffrey Robert White, Cheryl Flax-Davidson, and Larry S. Stewart; and for the National Association of Securities and Commercial Law Attorneys by Kevin P. Roddy, James P. Solimano, Steve W. Berman, and Jonathan W. Cuneo.

Briefs of amici curiae were filed for CBS, Inc., et al. by P. Cameron DeVore, Marshall J. Nelson, Douglas P. Jacobs, Jonathan E. Thackeray, John C. Fontaine, Cristina L. Mendoza, William A. Niese, Karlene Goller, Susan Weiner, Richard M. Schmidt, Jr., R. Bruce Rich, Slade R. Metcalf, Jane E. Kirtley, Bruce W. Sanford, and Henry S. Hoberman; for Trial Lawyers for Public Justice, P. C., by Leslie A. Brueckner and Arthur H. Bryant; for Richard L. Blatt et al. by Mr. Blatt, pro se, and Robert W. Hammesfahr, pro se; for James D. A. Boyle et al. by Arthur F. McEvoy III, pro se; and for Law and Economics Scholars et al. by Mark M. Hager, pro se.

[2] The top, hood, trunk, and quarter panels of Dr. Gore's car were repainted at BMW's vehicle preparation center in Brunswick, Georgia. The parties presumed that the damage was caused by exposure to acid rain during transit between the manufacturing plant in Germany and the preparation center.

[3] Dr. Gore also named the German manufacturer and the Birmingham dealership as defendants.

[4] Alabama codified its common-law cause of action for fraud in a 1907 statute that is still in effect. Hackmeyer v. Hackmeyer, 268 Ala. 329, 333, 106 So. 2d 245, 249 (1958). The statute provides: "Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case." Ala. Code § 6-5-102 (1993); see Ala. Code § 4299 (1907).

[5] The dealer who testified to the reduction in value is the former owner of the Birmingham dealership sued in this action. He sold the dealership approximately one year before the trial.

[6] Dr. Gore did not explain the significance of the $300 cutoff.

[7] The jury also found the Birmingham dealership liable for Dr. Gore's compensatory damages and the German manufacturer liable for both the compensatory and punitive damages. The dealership did not appeal the judgment against it. The Alabama Supreme Court held that the trial court did not have jurisdiction over the German manufacturer and therefore reversed the judgment against that defendant.

[8] BMW acknowledged that a Georgia statute enacted after Dr. Gore purchased his car would require disclosure of similar repairs to a car before it was sold in Georgia. Ga. Code Ann. §§ 40-1-5(b)-(e) (1994).

[9] While awarding a comparable amount of compensatory damages, the Yates jury awarded no punitive damages at all. In Yates, the plaintiff also relied on the 1983 nondisclosure policy, but instead of offering evidence of 983 repairs costing more than $300 each, he introduced a bulk exhibit

[10] Prior to the lawsuits filed by Dr. Yates and Dr. Gore, BMW and various BMW dealers had been sued 14 times concerning presale paint or damage repair. Accordingto the testimony ofBMW's in-housecounselat the postjudgment hearing on damages, only one of the suits concerned a car repainted by BMW.

[11] The Alabama Supreme Court did not indicate whether the $2 million figure represented the court's independent assessment of the appropriate level of punitive damages, or its determination of the maximum amount that the jury could have awarded consistent with the Due Process Clause.

[12] Other than Yates v. BMW of North America, Inc., 642 So. 2d 937 (1993), in which no punitive damages were awarded, the Alabama Supreme Court cited no such cases. In another portion of its opinion, 646 So. 2d, at 629, the court did cite five Alabama cases, none of which involved either a dispute arising out of the purchase of an automobile or an award of punitive damages. G. M. Mosley Contractors, Inc. v. Phillips, 487 So. 2d 876, 879 (1986); Hollis v. Wyrosdick, 508 So. 2d 704 (1987); Campbell v. Burns, 512 So. 2d 1341, 1343 (1987); Ashbee v. Brock, 510 So. 2d 214 (1987); and Jawad v. Granade, 497 So. 2d 471 (1986). All of these cases support the proposition that appellate courts in Alabama presume that jury verdicts are correct. In light of the Alabama Supreme Court's conclusion that (1) the jury had computed its award by multiplying $4,000 by the number of refinished vehicles sold in the United States and (2) that the award should have been based on Alabama conduct, respect for the error-free portion of the jury verdict would seem to produce an award of $56,000 ($4,000 multiplied by 14, the number of repainted vehicles sold in Alabama).

[13] See, e. g., Rivers v. BMW of North America, Inc., 214 Ga. App. 880, 449 S. E. 2d 337 (1994) (nondisclosure of presale paint repairs that occurred before state disclosure statute enacted); Wedmore v. Jordan Motors, Inc., 589 N. E. 2d 1180 (Ind. App. 1992) (same).

[14] Four States require disclosure of vehicle repairs costing more than 3 percent of suggested retail price. Ariz. Rev. Stat. Ann. § 28-1304.03 (1989); N. C. Gen. Stat. § 20-305.1(d)(5a) (1995); S. C. Code § 56-32-20 (Supp. 1995); Va. Code Ann. § 46.2-1571(D) (Supp. 1995). An additional three States mandate disclosure when the cost of repairs exceeds 3 percent or $500, whichever is greater. Ala. Code § 8-19-5(22)(c) (1993); Cal. Veh. Code Ann. §§ 9990-9991 (West Supp. 1996); Okla. Stat., Tit. 47, § 1112.1 (1991). Indiana imposes a 4 percent disclosure threshold. Ind. Code §§ 9-23-4—4, 9-23-4—5 (1993). Minnesota requires disclosure of repairs costing more than 4 percent of suggested retail price or $500, whichever is greater. Minn. Stat. § 325F.664 (1994). New York requires disclosure when the cost of repairs exceeds 5 percent of suggested retail price. N. Y. Gen. Bus. Law §§ 396—p(5)(a), (d) (McKinney Supp. 1996). Vermont imposes a 5 percent disclosure threshold for the first $10,000 in repair costs and 2 percent thereafter. Vt. Stat. Ann., Tit. 9, § 4087(d) (1993). Eleven States mandate disclosure only of damage costing more than 6 percent of retail value to repair. Ark. Code Ann. § 23-112-705 (1992); Idaho Code § 49-1624 (1994); Ill. Comp. Stat., ch. 815, § 710/5 (1994); Ky. Rev. Stat. Ann. § 190.0491(5) (Baldwin 1988); La. Rev. Stat. Ann. § 32:1260 (West Supp. 1995); Miss. Motor Vehicle Comm'n, Regulation No. 1 (1992); N. H. Rev. Stat. Ann. § 357—C:5(III)(d) (1995); Ohio Rev. Code Ann. § 4517.61 (1994); R. I. Gen. Laws §§ 31-5.1-18(d), (f) (1995); Wis. Stat. § 218.01(2d)(a) (1994); Wyo. Stat. § 31-16-115 (1994). Two States require disclosure of repairs costing $3,000 or more. See Iowa Code Ann. § 321.69 (Supp. 1996); N. D. Admin. Code § 37-09-01-01 (1992). Georgia mandates disclosure of paint damage that costs more than $500 to repair. Ga. Code Ann. §§ 40-1— 5(b)—(e) (1994) (enacted after respondent purchased his car). Florida requires dealers to disclose paint repair costing more than $100 of which they have actual knowledge. Fla. Stat. § 320.27(9)(n) (1992). Oregon requires manufacturers to disclose all "postmanufacturing" damage and repairs. It is unclear whether this mandate would apply to repairs such as those at issue here. Ore. Rev. Stat. § 650.155 (1991).

Many, but not all, of the statutes exclude from the computation of repair cost the value of certain components—typically items such as glass, tires, wheels and bumpers—when they are replaced with identical manufacturer's original equipment. E. g., Cal. Veh. Code Ann. §§ 9990-9991 (West Supp. 1996); Ga. Code Ann. §§ 40-1—5(b)—(e) (1994); Ill. Comp. Stat., ch. 815, § 710/5 (1994); Ky. Rev. Stat. Ann. § 190.0491(5) (Baldwin 1988); Okla. Stat., Tit. 47, § 1112.1 (1991); Va. Code Ann. § 46.2-1571(D) (Supp. 1995); Vt. Stat. Ann., Tit. 9, § 4087(d) (1993).

[15] Also, a state legislature might plausibly conclude that the administrative costs associated with full disclosure would have the effect of raising car prices to the State's residents.

[16] Federal disclosure requirements are, of course, a familiar part of our law. See, e. g., the Federal Food, Drug, and Cosmetic Act, as added by the Nutrition Labeling and Education Act of 1990, 104 Stat. 2353, 21 U. S. C. § 343; the Truth In Lending Act, 82 Stat. 148, as amended, 15 U. S. C. § 1604; the Securities Exchange Act of 1934, 48 Stat. 892, 894, as amended, 15 U. S. C. §§ 78l—78m; Federal Cigarette Labeling and Advertising Act, 79 Stat. 283, as amended, 15 U. S. C. § 1333; Alcoholic Beverage Labeling Act of 1988, 102 Stat. 4519, 27 U. S. C. § 215.

[17] See also Bigelow v. Virginia, 421 U. S. 809, 824 (1975) ("A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State"); New York Life Ins. Co. v. Head, 234 U. S. 149, 161 (1914) ("[I]t would be impossible to permit the statutes of Missouri to operate beyond the jurisdiction of that State . . . without throwing down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon the preservation of which the Government under the Constitution depends. This is so obviously the necessary result of the Constitution that it has rarely been called in question and hence authorities directly dealing with it do not abound"); Huntington v. Attrill, 146 U. S. 657, 669 (1892) ("Laws have no force of themselves beyond the jurisdiction of the State which enacts them, and can have extra-territorial effect only by the comity of other States").

[18] State power may be exercised as much by a jury's application of a state rule of law in a civil lawsuit as by a statute. See New York Times Co. v. Sullivan, 376 U. S. 254, 265 (1964) ("The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised"); San Diego Building Trades Council v. Garmon, 359 U. S. 236, 247 (1959) ("[R]egulation can be as effectively exerted through an award of damages as through some form of preventive relief").

[19] Brief for Respondent 11-12, 23, 27-28; Tr. of Oral Arg. 50-54. Dr. Gore's interest in altering the nationwide policy stems from his concern that BMW would not (or could not) discontinue the policy in Alabama alone. Brief for Respondent 11. "If Alabama were limited to imposing punitive damages based only on BMW's gain from fraudulent sales in Alabama, the resulting award would have no prospect of protecting Alabama consumers from fraud, as it would provide no incentive for BMW to alter the unitary, national policy of nondisclosure which yielded BMW millions of dollars in profits." Id., at 23. The record discloses no basis for Dr. Gore's contention that BMW could not comply with Alabama's law without changing its nationwide policy.

[20] See Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978) ("To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort"). Our cases concerning recidivist statutes are not to the contrary. Habitual offender statutes permit the sentencing court to enhance a defendant's punishment for a crime in light of prior convictions, including convictions in foreign jurisdictions. See e. g., Ala. Code § 13A-5-9 (1994); Cal. Penal Code Ann. §§ 667.5(f), 668 (West Supp. 1996); Ill. Comp. Stat., ch. 720, § 5/33B-1 (1994); N. Y. Penal Law §§ 70.04, 70.06, 70.08, 70.10 (McKinney 1987 and Supp. 1996); Tex. Penal Code Ann. § 12.42 (1994 and Supp. 1995-1996). A sentencing judge may even consider past criminal behavior which did not result in a conviction and lawful conduct that bears on the defendant's character and prospects for rehabilitation. Williams v. New York, 337 U. S. 241 (1949). But we have never held that a sentencing court could properly punish lawful conduct. This distinction is precisely the one we draw here. See n. 21, infra.

[21] Given that the verdict was based in part on out-of-state conduct that was lawful where it occurred, we need not consider whether one State may properly attempt to change a tortfeasor's unlawful conduct in another State.

[22] Of course, the fact that the Alabama Supreme Court correctly concluded that it was error for the jury to use the number of sales in other States as a multiplier in computing the amount of its punitive sanction does not mean that evidence describing out-of-state transactions is irrelevant in a case of this kind. To the contrary, as we stated in TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 462, n. 28 (1993), such evidence may be relevant to the determination of the degree of reprehensibility of the defendant's conduct.

[23] See Miller v. Florida, 482 U. S. 423 (1987) (Ex Post Facto Clause violated by retroactive imposition of revised sentencing guidelines that provided longer sentence for defendant's crime); Bouie v. City of Columbia, 378 U. S. 347 (1964) (retroactive application of new construction of statute violated due process); id., at 350-355 (citing cases); Lankford v. Idaho, 500 U. S. 110 (1991) (due process violated because defendant and his counsel did not have adequate notice that judge might impose death sentence). The strict constitutional safeguards afforded to criminal defendants are not applicable to civil cases, but the basic protection against "judgments without notice" afforded by the Due Process Clause, Shaffer v. Heitner, 433 U. S. 186, 217 (1977) (Stevens, J., concurring in judgment), is implicated by civil penalties.

[24] "The flagrancy of the misconduct is thought to be the primary consideration in determining the amount of punitive damages." Owen, A Punitive Damages Overview: Functions, Problems and Reform, 39 Vill. L. Rev. 363, 387 (1994).

[25] The principle that punishment should fit the crime "is deeply rooted and frequently repeated in common-law jurisprudence." Solem v. Helm, 463 U. S. 277, 284 (1983). See Burkett v. Lanata, 15 La. Ann. 337, 339 (1860) (punitive damages should be "commensurate to the nature of the offence"); Blanchard v. Morris, 15 Ill. 35, 36 (1853) ("[W]e cannot say [the exemplary damages] are excessive under the circumstances; for the proofs show that threats, violence, and imprisonment, were accompanied by mental fear, torture, and agony of mind"); Louisville & Northern R. Co. v. Brown, 127 Ky. 732, 749, 106 S. W. 795, 799 (1908) ("We are not aware of any case in which the court has sustained a verdict as large as this one unless the injuries were permanent").

[26] Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991).

[27] The dissenters also recognized that "TXO's conduct was clearly wrongful, calculated, and improper . . . ." TXO, 509 U. S., at 482 (opinion of O'Connor, J.).

[28] In Jeter v. M & M Dodge, Inc., 634 So. 2d 1383 (La. App. 1994), a Louisiana Court of Appeals suggested that the Louisiana disclosure statute functions as a safe harbor. Finding that the cost of repairing presale damage to the plaintiff's car exceeded the statutory disclosure threshold, the court held that the disclosure statute did not provide a defense to the action. Id., at 1384.

During the pendency of this litigation, Alabama enacted a disclosure statute which defines "material" damage to a new car as damage requiring repairs costing in excess of 3 percent of suggested retail price or $500, whichever is greater. Ala. Code § 8-19-5(22) (1993). After its decision in this case, the Alabama Supreme Court stated in dicta that the remedies available under this section of its Deceptive Trade Practices Act did not displace or alter pre-existing remedies available under either the common law or other statutes. Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 917, n. 2 (1994). It refused, however, to "recognize, or impose on automobile manufacturers, a general duty to disclose every repair of damage, however slight, incurred during the manufacturing process." Id., at 921. Instead, it held that whether a defendant has a duty to disclose is a question of fact "for the jury to determine." Id., at 918. In reaching that conclusion it overruled two earlier decisions that seemed to indicate that as a matter of law there was no disclosure obligation in cases comparable to this one. Id., at 920 (overruling Century 21-Reeves Realty, Inc. v. McConnell Cadillac, Inc., 626 So. 2d 1273 (1993), and Cobb v. Southeast Toyota Distributors, Inc., 569 So. 2d 395 (1990)).

[29] See also Ariz. Rev. Stat. Ann. § 28-1304.03 (1989) ("[I]f disclosure is not required under this section, a purchaser may not revoke or rescind a sales contract due solely to the fact that the new motor vehicle was damaged and repaired prior to completion of the sale"); Ind. Code § 9-23-4—5 (1993) (providing that "[r]epaired damage to a customer-ordered new motor vehicle not exceeding four percent (4%) of the manufacturer's suggested retail price does not need to be disclosed at the time of sale"); N. C. Gen. Stat. § 20-305.1(e) (1993) (requiring disclosure of repairs costing more than 5 percent of suggested retail price and prohibiting revocation or rescission of sales contract on the basis of less costly repairs); Okla. Stat., Tit. 47, § 1112.1 (1991) (defining "material" damage to a car as damage requiring repairs costing in excess of 3 percent of suggested retail price or $500, whichever is greater).

[30] Restatement (Second) of Torts § 538 (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 108 (5th ed. 1984).

[31] The Alabama Supreme Court has held that a car may be considered "new" as a matter of law even if its finish contains minor cosmetic flaws. Wilburn v. Larry Savage Chevrolet, Inc., 477 So. 2d 384 (1985). We note also that at trial respondent only introduced evidence of undisclosed paint damage to new cars repaired at a cost of $300 or more. This decision suggests that respondent believed that the jury might consider some repairs too de minimis to warrant disclosure.

[32] Before the verdict in this case, BMW had changed its policy with respect to Alabama and two other States. Five days after the jury award, BMW altered its nationwide policy to one of full disclosure.

[33] See, e. g., Grant v. McDonogh, 7 La. Ann. 447, 448 (1852) ("[E]xemplary damages allowed should bear some proportion to the real damage sustained"); Saunders v. Mullen, 66 Iowa 728, 729, 24 N. W. 529 (1885) ("When the actual damages are so small, the amount allowed as exemplary damages should not be so large"); Flannery v. Baltimore & Ohio R. Co., 15 D. C. 111, 125 (1885) (when punitive damages award "is out of all proportion to the injuries received, we feel it our duty to interfere"); Houston & Texas Central R. Co. v. Nichols, 9 Am. & Eng. R. R. Cas. 361, 365 (Tex. 1882) ("Exemplary damages, when allowed, should bear proportion to the actual damages sustained"); McCarthy v. Niskern, 22 Minn. 90, 91-92 (1875) (punitive damages "enormously in excess of what may justly be regarded as compensation" for the injury must be set aside "to prevent injustice").

[34] Owen, supra n. 23, at 368, and n. 23. One English statute, for example, provides that officers arresting persons out of their jurisdiction shall pay double damages. 3 Edw., I., ch. 35. Another directs that in an action for forcible entry or detainer, the plaintiff shall recover treble damages. 8 Hen. VI, ch. 9, § 6.

Present-day federal law allows or mandates imposition of multiple damages for a wide assortment of offenses, including violations of the antitrust laws, see § 4 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 15, and the Racketeer Influenced and Corrupt Organizations Act, see 18 U. S. C. § 1964, and certain breaches of the trademark laws, see § 35 of the Trademark Act of 1946, 60 Stat. 439, as amended, 15 U. S. C. § 1117, and the patent laws, see 66 Stat. 813, 35 U. S. C. § 284.

[35] "While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respondents, in terms of reduced or eliminated royalties payments, had petitioner succeeded in its illicit scheme. Thus, even if the actual value of the `potential harm' to respondents is not between $5 million and $8.3 million, but is closer to $4 million, or $2 million, or even $1 million, the disparity between the punitive award and the potential harm does not, in our view, `jar one's constitutional sensibilities.' " TXO, 509 U. S., at 462, quoting Haslip, 499 U. S., at 18.

[36] Even assuming each repainted BMW suffers a diminution in value of approximately $4,000, the award is 35 times greater than the total damages of all 14 Alabama consumers who purchased repainted BMW's.

[37] The ratio here is also dramatically greater than any award that would be permissible under the statutes and proposed statutes summarized in the appendix to Justice Ginsburg's dissenting opinion. Post, at 615-616.

[38] Conceivably the Alabama Supreme Court's selection of a 500-to-1 ratio was an application of Justice Scalia's identification of one possible reading of the plurality opinion in TXO: Any future due process challenge to a punitive damages award could be disposed of with the simple observation that "this is no worse than TXO. " 509 U. S., at 472 (Scalia, J., concurring in judgment). As we explain in the text, this award is significantly worse than the award in TXO.

[39] Although the Court did not address the size of the punitive damages award in Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984), the dissenters commented on its excessive character, noting that the "$10 million [punitive damages award] that the jury imposed is 100 times greater than the maximum fine that may be imposed . . . for a single violation of federal standards" and "more than 10 times greater than the largest single fine that the Commission has ever imposed." Id., at 263 (Blackmun, J., dissenting). In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court observed that the punitive award for libel was "one thousand times greater than the maximum fine provided by the Alabama criminal statute," and concluded that the "fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute." Id., at 277.

[40] Ala. Code § 8-19-11(b) (1993).

[41] See, e. g., Ark. Code Ann. § 23-112-309(b) (1992) (up to $5,000 for violation of state Motor Vehicle Commission Act that would allow suspension of dealer's license; up to $10,000 for violation of Act that would allow revocation of dealer's license); Fla. Stat. § 320.27(12) (1992) (up to $1,000); Ga. Code Ann. §§ 40-1—5(g), 10-1—397(a) (1994 and Supp. 1996) (up to $2,000 administratively; up to $5,000 in superior court); Ind. Code § 9-23-6—4 (1993) ($50 to $1,000); N. H. Rev. Stat. Ann. §§ 357—C:15, 651:2 (1995 and Supp. 1995) (corporate fine of up to $20,000); N. Y. Gen. Bus. Law § 396—p(6) (McKinney Supp. 1995) ($50 for first offense; $250 for subsequent offenses).

[42] Justice Ginsburg expresses concern that we are "the only federal court policing" this limit. Post, at 613. The small number of punitive damages questions that we have reviewed in recent years, together with the fact that this is the first case in decades in which we have found that a punitive damages award exceeds the constitutional limit, indicates that this concern is at best premature. In any event, this consideration surely does not justify an abdication of our responsibility to enforce constitutional protections in an extraordinary case such as this one.

[43] The Alabama Supreme Court said:

"[W]e must conclude that the award of punitive damages was based in large part on conduct that happened in other jurisdictions. . . . Although evidence of similar acts in other jurisdictions is admissible as to the issue of `pattern and practice' of such acts, . . . this jury could not use the number of similar acts that a defendant has committed in other jurisdictions as a multiplier when determining the dollar amount of a punitive damages award. Such evidence may not be considered in setting the size of the civil penalty, because neither the jury nor the trial court had evidence before it showing in which states the conduct was wrongful." 646 So. 2d 619, 627 (1994).

[44] According to trial testimony, in late May 1992, BMW began redirecting refinished cars out of Alabama and two other States. Tr. 964. The jury returned its verdict in favor of Gore on June 12, 1992. Five days later, BMW changed its national policy to one of full disclosure. Id., at 1026.

[45] See, e. g., Brief for Law and Economics Scholars et al. as Amici Curiae 6-28 (economic analysis demonstrates that Alabama Supreme Court's judgment was not unreasonable); W. Landes & R. Posner, Economic Structure of Tort Law 160-163 (1987) (economic model for assessing propriety of punitive damages in certain tort cases).

[46] See ante, at 568 ("In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case."); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 278 (1989) (In any "lawsuit where state law provides the basis of decision, the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law."); Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255 (1984) ("Punitive damages have long been a part of traditional state tort law.").

[47] Petitioner invites the Court to address the question of multiple punitive damages awards stemming from the same alleged misconduct. The Court does not take up the invitation, and rightly so, in my judgment, for this case does not present the issue. For three reasons, the question of multiple awards is hypothetical, not real, in Gore's case. First, the punitive damages award in favor of Gore is the only such award yet entered against BMW on account of its nondisclosure policy.

Second, BMW did not raise the issue of multiple punitives below. Indeed, in its reply brief before the Alabama Supreme Court, BMW stated: "Gore confuses our point about fairness among plaintiffs. He treats this point as a premature `multiple punitive damages' argument. But, contrary to Gore's contention, we are not asking this Court to hold, as a matter of law, that a `constitutional violation occurs when a defendant is subjected to punitive damages in two separate cases.' " Reply Brief for Appellant in Nos. 1920324, 1920325 (Ala. Sup. Ct.), p. 48 (internal citations omitted).

Third, if BMW had already suffered a punitive damages judgment in connection with its nondisclosure policy, Alabama's highest court presumably would have taken that fact into consideration. In reviewing punitive damages awards attacked as excessive, the Alabama Supreme Court considers whether "there have been other civil actions against the same defendant, based on the same conduct." 646 So. 2d 619, 624 (1994) (quoting Green Oil Co. v. Hornsby, 539 So. 2d 218, 224 (Ala. 1989)). If so, "this should be taken into account in mitigation of the punitive damages award." 646 So. 2d, at 624. The Alabama court accordingly observed that Gore's counsel had filed 24 other actions against BMW in Alabama and Georgia, but that no other punitive damages award had so far resulted. Id., at 626.

[48] Justice Breyer's concurring opinion offers nothing more solid. Under Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 (1991), he acknowledges, Alabama's standards for punitive damages, standing alone, do not violate due process. Ante, at 588. But they "invit[e] the kind of scrutiny the Court has given the particular verdict before us." Ibid. Pursuing that invitation, Justice Breyer concludes that, matching the particular facts of this case to Alabama's "legitimate punitive damages objectives," ante, at 596, the award was "`gross[ly] excessiv[e],' " ante, at 597. The exercise is engaging, but ultimately tells us only this: too big will be judged unfair. What is the Court's measure of too big? Not a cap of the kind a legislature could order, or a mathematical test this Court can divine and impose. Too big is, in the end, the amount at which five Members of the Court bridle.

[49] See, e. g., Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 857, 443 N. W. 2d 566, 574 (1989) (per curiam) ("[P]unitive, vindictive, or exemplary damages contravene Neb. Const. art. VII, § 5, and thus are not allowed in this jurisdiction."); Santana v. Registrars of Voters of Worcester, 398 Mass. 862, 502 N. E. 2d 132 (1986) (punitive damages are not permitted, unless expressly authorized by statute); Fisher Properties, Inc. v. Arden-Mayfair, Inc., 106 Wash. 2d 826, 852, 726 P. 2d 8, 23 (1986) (en banc) (same).

In Life Ins. Co. of Georgia v. Johnson, No. 1940357 (Nov. 17, 1995), the Alabama Supreme Court revised the State's regime for assessments of punitive damages. Henceforth, trials will be bifurcated. Initially, juries will be instructed to determine liability and the amount of compensatory damages, if any; also, the jury is to return a special verdict on the question whether a punitive damages award is warranted. If the jury answers yes to the punitive damages question, the trial will be resumed for the presentation of evidence and instructions relevant to the amount appropriate to award as punitive damages. After postverdict trial court review and subsequent appellate review, the amount of the final punitive damages judgment will be paid into the trial court. The trial court will then order payment of litigation expenses, including the plaintiff's attorney's fees, and instruct the clerk to divide the remainder equally between the plaintiff and the State General Fund. The provision for payment to the State General Fund is applicable to all judgments not yet satisfied, and therefore would apply to the judgment in Gore's case.