Cite as: 512 U. S. 415 (1994)
Ginsburg, J., dissenting
persons in situations similar to the claimant's and the severity of criminal penalties to which the defendant has been or may be subjected."
These substantive criteria, and the precise instructions detailing them,6 gave the jurors "adequate guidance" in making
6 The trial court instructed the jury: " 'Punitive damages: If you have found that plaintiff is entitled to general damages, you must then consider whether to award punitive damages. Punitive damages may be awarded to the plaintiff in addition to general damages to punish wrongdoers and to discourage wanton misconduct.
" 'In order for plaintiff to recover punitive damages against the defendant[s], the plaintiff must prove by clear and convincing evidence that defendant[s have] shown wanton disregard for the health, safety, and welfare of others. . . .
" 'If you decide this issue against the defendant[s], you may award punitive damages, although you are not required to do so, because punitive damages are discretionary.
" 'In the exercise of that discretion, you shall consider evidence, if any, of the following:
" 'First, the likelihood at the time of the sale [of the all-terrain vehicle] that serious harm would arise from defendants' misconduct.
" 'Number two, the degree of the defendants' awareness of that likelihood.
" 'Number three, the duration of the misconduct. " 'Number four, the attitude and conduct of the defendant[s] upon notice of the alleged condition of the vehicle.
" 'Number five, the financial condition of the defendant[s].' " 316 Ore., at 282, n. 11, 851 P. 2d, at 1095, n. 11. The trial judge did not instruct the jury on § 30.925(3)(c), "profitability of [Honda's] misconduct," or § 30.925(3)(g), the "total deterrent effect of other punishment" to which Honda was subject. Honda objected to an instruction on factor (3)(c), which it argued was phrased "to assume the existence of misconduct," and expressly waived an instruction on factor (3)(g), on the ground that it had not previously been subject to punitive damages. App. to Brief for Plaintiff-Respondent in Opposition in No. S38436 (Ore.), p. 2. In its argument before the Supreme Court of Oregon, Honda did not contend that the trial court failed to instruct the jury concerning the "[§ 30.925(3)] criteria," or "that the jury did not properly apply those criteria." 316 Ore., at 282, n. 11, 851 P. 2d, at 1095, n. 11.
441
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