Cite as: 509 U. S. 443 (1993)
O'Connor, J., dissenting
the defendant's expected gain might provide appropriate deterrence. One might even go so far as to suppose that the jury would be daring enough to apply that measure, even though the trial court listed numerous factors, including actual harm, but made no mention of potential harm. But such speculation has no application in this case, for the jury instructions made it quite clear that deterrence was linked not to an unmentioned factor like potential gain but to a factor the trial court did mention—TXO's wealth:
" 'The object of [punitive damages] is to deter TXO Production Corp. and others from committing like offenses in the future. Therefore the law recognizes that to in fact deter such conduct may require a larger fine upon one of large means than it would upon one of ordinary means under the same or similar circumstances.' " Ante, at 463, n. 29 (plurality opinion) (quoting App. 35) (emphasis added).
A reasonable juror hearing these instructions would not have felt free to consider the potential harm or expected gain measures the plurality proposes today.
The two passages the plurality excerpts from closing arguments, see ante, at 461, do not support the plurality's theory. Respondent Tug Fork Land Company's closing argument does mention that TXO thought the wells would produce " 'lot[s] of money.' " Ibid. (quoting Tr. 748-749). But that remark had nothing to do with punitive damages. Instead, counsel was addressing the issue of liability: According to him, TXO's desire to obtain all the royalties was the motive for its bad faith conduct. See Tr. 746-749 (TXO slandered respondents' title to lower the value of the property so it could exact concessions or win 100% of royalties by means of a lawsuit). When counsel did discuss the appropriate measure of punitive damages, not once did he mention the potential harm to respondents. Instead, he relied exclusively on TXO's vast wealth:
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