PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

                    No. 14-3010
                    ___________

BRAND MARKETING GROUP LLC, d/b/a Thermablaster

                          v.

    INTERTEK TESTING SERVICES, N.A., INC.,
         d/b/a Intertek Testing Servicing;
  CONTINENTAL APPLIANCES, INC., d/b/a Procom

          Intertek Testing Services, N.A., Inc.,
                                        Appellant
                      __________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
            (W.D. Pa. No. 2-12-cv-01572)
     District Judge: Honorable Arthur J. Schwab
                     ___________

              Argued on April 28, 2015
Before: FISHER, HARDIMAN and ROTH, Circuit Judges.

             (Filed: September 10, 2015)
Brendan B. Lupetin, Esq. (Argued)
Meyers, Evans & Associates
707 Grant Street
Gulf Tower, Suite 3200
Pittsburgh, PA 15219
       Counsel forAppellee

William T. Hangley, Esq. (Argued)
Matthew A. Hamermesh, Esq.
Dina L. Hardy Grove, Esq.
Hangley, Aronchick, Segal, Pudlin & Schiller
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103
      Counsel for Appellant
                       ____________

                          OPINION
                        ____________

HARDIMAN, Circuit Judge.

        This case comes to us following a jury verdict in favor
of Brand Marketing Group, LLC. The jury found Defendant
Intertek Testing Services, N.A., Inc. liable to Brand for
negligent misrepresentation and awarded Brand more than $6
million in total damages—$1,045,000 in compensatory and
$5 million in punitive damages. After an adverse ruling on its
post-trial motions, Intertek filed this appeal from the District
Court’s final order. We will affirm.




                               2
                               I

                              A

       Brand is a small company founded in 2004 by David
      1
Brand. Until about 2008, Brand sold vent-free heaters—
products that provide gas heat without having to vent
outdoors—made by a company called ProCom. At that point,
Brand began developing the Thermablaster, a vent-free heater
that purportedly improved on ProCom’s design.

       Through some industry contacts, Brand was introduced
to a Chinese company called Reecon M&E Co., Ltd. that
would manufacture the Thermablasters. Reecon, in turn,
suggested that Brand use Intertek to test the heaters to ensure
they met U.S. safety standards. Intertek, an international
product-testing company with more than 35,000 employees,
had an ongoing relationship with Reecon, and Reecon wanted
to extend that relationship to include the Thermablasters.

        Before accepting Reecon’s testing suggestion, David
Brand did some research. He attended a trade show where he
spoke with two Intertek representatives who indicated that
their company could test the Thermablasters. He also received
and examined a promotional leaflet and visited the company’s
website, which indicated that Intertek could test to any
standard promulgated by the American National Standards
Institute (ANSI). Later, he exchanged emails with the trade
show representatives, who suggested that the Thermablasters
be tested at Intertek’s facility in China.

       1
         Where the difference between company and owner
matters, we refer to the latter by his first and last names;
otherwise, we refer to them as “Brand” interchangeably.



                              3
       Satisfied that Intertek and its China facility had the
expertise to do the testing, Brand allowed Reecon to use
Intertek to test the heaters. Reecon then applied to have the
Thermablasters tested by Intertek, stating on its application
that the heaters should be tested against the most recent
applicable ANSI standard (Z.21.11.2b), and that “BMG”—
Brand Marketing Group—was the ultimate buyer of the
heaters. Although Reecon contracted with and paid Intertek
about $22,000, the cost of testing was passed through to
Brand as part of the per-unit price Reecon charged Brand for
the heaters.

       Having established manufacturing and testing
programs for its product, Brand struck a deal in April 2011
with Ace Hardware Corp., which agreed to pay Brand some
$467,000 for 3,980 Thermablasters. Three months later,
Intertek tested the heaters and found that they met the ANSI
standard. Shortly after testing was completed, David Brand
visited China to monitor production. While he was there,
Reecon gave Brand a Test Data Sheet—an Intertek document
signed by several of its engineers—showing that the heaters
had passed all relevant tests. Satisfied that the heaters
complied with the applicable standard, Brand bought 5,500
heaters from Reecon, and delivered the Thermablasters to
Ace within a couple of months.

       Ace began selling the heaters in late 2011 but halted
sales permanently after ProCom—the company whose
products Brand had formerly sold—notified Ace that the
Thermablasters did not meet ANSI standard Z.21.11.2b.
Brand initially defended its product, pointing to Intertek’s
Test Data Sheet as evidence that the heaters met the ANSI
standard. Because the heaters were actually noncompliant,
however, Ace refused to sell them and demanded that Brand



                             4
repossess the heaters and refund its payment. Brand could do
neither, as the company lacked the means to retrieve the
heaters and had already spent the funds it received from Ace.
As a result, Ace sued Brand and obtained a default judgment
for about $611,060 (Ace’s purchase price plus interest and
costs), thus wiping out Brand’s anticipated profit of about
$147,000.

        Brand then sued Intertek alleging, inter alia, fraudulent
and negligent misrepresentation. Intertek countersued,
alleging trademark infringement (among other claims)
because Brand had placed Intertek’s testing certification
mark—which indicates to consumers that Intertek has
certified that a product meets applicable safety standards—on
Thermablaster boxes prior to receiving Intertek’s permission
to do so. During pretrial proceedings, Intertek bought Ace’s
$611,060 judgment against Brand for $250,000. Intertek
aggressively tried to collect its judgment in the weeks leading
up to trial, attempting, among other tactics, to transfer the
judgment from the company to David Brand personally.

      Before trial, Brand withdrew its fraudulent
misrepresentation claim. As relevant to this appeal, the parties
proceeded to trial on the negligent misrepresentation and
trademark infringement claims.

                               B

       During the three-day trial held in March 2014, the jury
heard testimony from several witnesses, including Intertek’s
chief engineer for heating products, Frederick Curkeet.
Curkeet testified that vent-free heaters posed “a big risk in
terms of overheating and carbon monoxide poisoning” in
consumers’ homes if they did not meet safety standards and




                               5
that he knew Intertek’s customers relied on their testing
results. App. 772. Despite that understanding, Curkeet
admitted that Intertek lacked a “complete process” to ensure
that Intertek’s facilities around the world tested consistently
to ANSI standards. Nor did Intertek share “best practice[s]”
among facilities, even though Curkeet acknowledged that
such knowledge-sharing would be ideal. App. 802. Moreover,
Curkeet stated that in the past “quite a number [of Intertek]
engineers” had been caught “slacking off on the job and
saying things complied without running the test,” though he
maintained that Intertek always fired those employees
promptly. App. 842.

       Curkeet also testified that, although ANSI standard
Z.21.11.2b was written in English, Intertek did not translate it
for the Chinese engineers who tested the Thermablaster.
Intertek didn’t do so, he said, because the standard’s
engineering jargon didn’t translate well from English to
Chinese. The company decided not to translate even though
the Chinese engineers’ English was imperfect: as Curkeet
noted, “it’s obvious it’s not their first language,” and
“sometimes the language issues do creep into the
documentation.” App. 800–01. In regard to the Thermablaster
testing, he agreed that “something got lost in translation.”
App. 802. Furthermore, Curkeet stated that Intertek had never
before tested to Z.21.11.2b and that training and experience in
the China facility were lacking. He said that although he was
on the ANSI committee that wrote the applicable standard, he
did not directly supervise the Chinese engineers who tested
the heaters. Had he done so, Curkeet stated, Intertek would
not have erroneously certified the Thermablasters.

       At the close of trial, the District Court instructed the
jury that it could award punitive damages to Brand if it found



                               6
that Intertek’s conduct was outrageous, even though Brand’s
claim was for negligent, not fraudulent, misrepresentation.
The jury did just that, returning a verdict for Brand in the
amount of $6,045,000. That figure included $725,000 in past
compensatory damages, $320,000 in future compensatory
damages, and $5 million in punitive damages. The jury also
found for Intertek on the trademark infringement claim but
awarded no damages because the infringement was not
willful.

                              C

        After the jury verdict was announced, Intertek moved
for post-trial relief under Federal Rules of Civil Procedure 50
and 59. It requested (1) judgment as a matter of law or a new
trial on the punitive damages claim because Brand had not
shown that Intertek had acted recklessly; (2) a reduction in
punitive damages because the award violated the Due Process
Clause of the Fourteenth Amendment; (3) a reduction in
compensatory damages because Brand had shown only about
$320,000 in actual loss; (4) a new trial because the jury
verdicts on Brand’s claim and Intertek’s counterclaim were
inconsistent; (5) a set-off to the judgment equal to the
judgment against Brand that Intertek had purchased from
Ace; and (6) a new trial because of allegedly erroneous
evidentiary rulings by the District Court. The District Court
granted the requested set-off but denied the remainder of
Intertek’s motion. Intertek filed this timely appeal.

                              II

       Brand is a limited liability company, so its citizenship
“is determined by the citizenship of its members.” VICI
Racing, LLC v. T-Mobile USA, Inc., 

, 282 (3d




                              7
Cir. 2014) (citation omitted). Because its owner David Brand
is a citizen of Pennsylvania, the company is likewise a citizen
of Pennsylvania. Intertek is a citizen of New York and
Delaware, and the amount in controversy is more than
$75,000. The District Court therefore had diversity
jurisdiction under 28 U.S.C. § 1332, and removal from state
court (where this case originated) was proper under 28 U.S.C.
§ 1441. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291.

                              III

        Intertek raises several arguments that we shall address
in order of importance. First, we consider Intertek’s argument
that Brand’s case was foreclosed by the economic loss
doctrine. We then analyze Intertek’s various challenges to the
damages awards: that (1) the compensatory award was legally
improper; (2) the compensatory award was factually
irrational; (3) punitive damages are per se unavailable for
negligent misrepresentation; (4) the District Court lacked a
factual basis on which to issue a punitive damages jury
instruction; and (5) the punitive damages award violated the
Due Process Clause of the Fourteenth Amendment. Finally,
we assess the consistency of the jury’s verdicts.

                              A

       Intertek    claims      that     Brand’s      negligent
misrepresentation claim was barred by Pennsylvania’s
economic loss doctrine. This is a purely legal question, so we
exercise plenary review over the District Court’s holding that
an exception to the economic loss doctrine permitted the
claim. Addie v. Kjaer, 

, 867 (3d Cir. 2013). The




                              8
parties agree that Pennsylvania law applies. Erie R.R. Co. v.
Tompkins, 

, 78 (1938).

        The economic loss doctrine “provides that no cause of
action exists for negligence that results solely in economic
damages unaccompanied by physical or property damage.”
Sovereign Bank v. BJ’s Wholesale Club, Inc., 

,
175 (3d Cir. 2008) (quoting Adams v. Copper Beach
Townhome Cmtys., L.P., 

, 305 (Pa. Super. Ct.
2003)). Notwithstanding the general rule, the Supreme Court
of Pennsylvania has recognized an exception specifically for
negligent misrepresentation claims. In Bilt-Rite Contractors,
Inc. v. Architectural Studio, 

(Pa. 2005), the
court expressly adopted Restatement (Second) of Torts § 552.

Section 552 provides:

      (1) One who, in the course of his business . . .
      [negligently] supplies false information for the
      guidance of others in their business
      transactions, is subject to liability for pecuniary
      loss caused to them by their justifiable reliance
      upon the information . . . .

      (2) [This liability] is limited to loss suffered

             (a) by the person or one of a limited
             group of persons for whose benefit and
             guidance he intends to supply the
             information or knows that the recipient
             intends to supply it; and

             (b) through reliance upon it in a
             transaction that he intends the
             information to influence or knows that




                               9
              the recipient so intends or          in   a
              substantially similar transaction.

       Intertek acknowledges the Bilt-Rite exception, but
argues that § 552 is unavailing to Brand because it was not in
the “limited group” of people “for whose benefit and
guidance” Intertek provided information. Specifically,
Intertek contends that the information David Brand received
from its website could not have been the basis of a valid
negligent misrepresentation claim because information on the
Internet is provided to the public, not to a limited group. And
it argues that a valid claim could not be based on the Test
Data Sheet because that information was provided to Reecon,
not Brand directly (even though Brand eventually received it).

       Even if Intertek is correct that a website cannot
provide the foundation for a negligent misrepresentation
claim, it is wrong that the Test Data Sheet could not do so.
Intertek urges us to read § 552 to mean that a negligent
misrepresentation claim is viable only when a defendant
provides information directly to a plaintiff. We decline to do
so because that reading is contradicted by the plain text of
§ 552(2)(a), which permits claims by a third party when a
professional provides information and “knows that the
recipient intends to supply it” to the third party. That is
precisely what happened here: Intertek knew that Reecon was
not the only party relying on its testing information based on
Reecon’s testing application that listed “BMG” as a buyer of
the Thermablasters.

       In any event, the Bilt-Rite exception applies even if
Intertek did not know that “BMG” meant that Brand was the
buyer of the heaters, as it asserts in its reply brief. In
discussing its rationale for adopting § 552, the Pennsylvania



                              10
Supreme Court noted that an information supplier’s liability
for negligent misrepresentation does not depend on the
supplier’s knowledge of the recipient’s identity:

      [W]ith fewer generalists and more experts
      operating in the business world, business
      persons have found themselves in a position of
      increasing reliance upon the guidance of those
      possessing special expertise. Oftentimes, the
      party ultimately relying upon the specialized
      expertise has no direct contractual relationship
      with the expert supplier of information, and
      therefore, no contractual recourse if the supplier
      negligently misrepresents the information to
      another in privity. And yet, the supplier of the
      information is well aware that this third party
      exists (even if the supplier is unaware of his
      specific identity) and well knows that the
      information it has provided was to be relied
      upon by that party. Section 552 . . . hold[s] such
      professionals to a traditional duty of care for
      foreseeable harm.

(emphasis added).

       As Bilt-Rite makes clear, Intertek didn’t need to know
that Brand, specifically, would rely on its testing data for §
552 to apply. Instead, Intertek needed to know only that
somebody aside from Reecon would rely on it—and, given
that Reecon’s testing application listed multiple parties as
“Buyer[s]” of the Thermablasters, it certainly knew that
much. Therefore, the District Court correctly permitted
Brand’s negligent misrepresentation claim to proceed under




                             11
Pennsylvania’s Bilt-Rite exception to the economic loss
doctrine.

                             B

       Intertek next contends that the jury’s compensatory
damages award—$725,000 for past damages and $320,000
for future damages—was excessive. We apply a mixed
standard of review to this issue. We review de novo whether
the District Court applied the appropriate measure of
damages. VICI 

. But if the District
Court committed no legal error, our factual review of a
compensatory damages award is “exceedingly narrow”—we
will not disturb a jury’s decision “so long as there exists
sufficient evidence on the record, which if accepted by the
jury, would sustain the award.” Cortez v. Trans Union, LLC,

, 718 (3d Cir. 2010) (citations omitted).

                             1

       The gist of Intertek’s legal argument regarding
compensatory damages is this: Restatement (Second) of Torts
§ 552B governs damages awards for negligent
misrepresentation, and it permits damages only for actual
losses, which do not include “benefit-of-the-bargain”
damages or lost profits. Because all but $320,368 (the amount
Brand paid Reecon for the heaters) of Brand’s losses were
something other than “actual,” Intertek argues, we must
reduce the jury’s compensatory award to that amount.

       Section 552B describes the damages recoverable for
negligent misrepresentation as:




                             12
      (1) . . . [T]hose necessary to compensate the
      plaintiff for the pecuniary loss to him of which
      the misrepresentation is a legal cause, including

              (a) the difference between the value of
              what he has received in the transaction
              and its purchase price or other value
              given for it; and

              (b) pecuniary loss suffered otherwise as a
              consequence of the plaintiff’s reliance
              upon the misrepresentation.

      (2) the damages recoverable for a negligent
      misrepresentation do not include the benefit of
      the plaintiff’s contract with the defendant.

Comment b to that section explains that § 552B “rejects, as to
negligent misrepresentation, the possibility that . . . the
plaintiff may also recover damages that will give him the
benefit of his contract with the defendant.” Restatement
(Second) of Torts § 552B cmt. b.

       Although the Pennsylvania Supreme Court expressly
adopted § 552 in Bilt-Rite, it has yet to adopt § 552B. Nor
have the parties cited any cases from Pennsylvania appellate
courts so holding. Despite this “dearth of Pennsylvania case
law explaining damages recoverable under a cause of action
for negligent misrepresentation,” Merrill Iron & Steel, Inc. v.
Blaine Constr. Corp., 

, at *7 (W.D. Pa.
July 2, 2014), we believe that the Pennsylvania Supreme
Court would adopt § 552B. Neither Intertek nor Brand
encourages us to look elsewhere for the applicable law and,




                              13
given § 552B’s close relationship with § 552, we see no
reason to do so either.

       Intertek argues that Brand cannot recover the benefit
of its Ace contract or other lost profits (presumably from
potential future deals with Ace) under § 552B. The District
Court disagreed, noting that § 552B(2) and comment b “only
prohibit[] a plaintiff from realizing the benefit of its contract
with defendant, here Intertek, presumably because such
damages are recoverable under the alternative theory of
breach of contract.” Brand Mktg. Grp., LLC v. Intertek
Testing Servs. NA, Inc., 

, at *21 (W.D. Pa.
May 20, 2014). According to the District Court, Section 552B
permitted Brand to recover the benefit of its bargain with
Ace, a non-defendant third party. In response, Intertek
counters that “[a] party’s affairs cannot be subdivided so
finely” to distinguish between the benefit of a bargain with a
defendant and the benefit of a bargain with a third party.
Intertek Br. 30. “The benefit to a manufacturer of its
relationship with a retailer,” it argues, “is indivisible from the
benefit of its relationship with a vendor. From either
perspective, the benefit is the profit from its business.” 

view, Intertek’s failure to explain why such
benefits are indistinguishable in light of § 552B makes its
argument unpersuasive. Intertek asks us to conclude that
when § 552B excises “the benefit of the plaintiff’s contract
with the defendant” from negligent misrepresentation
damages, it actually means to preclude all lost profits that a
plaintiff might suffer as a result of a defendant’s
misrepresentation. Yet Intertek provides no reason why we
should predict that the Pennsylvania Supreme Court would
adopt § 552B but decline to give meaning to all of its words.
Reading that section as Intertek urges would render “with the



                               14
defendant” meaningless in § 552B(1)(b) and in comment b.
Such a reading is unsound as a matter of both logic and
textual interpretation. Cf. Hibbs v. Winn, 

, 101
(2004) (“A statute should be construed so that effect is given
to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant . . . .” (quoting 2A Norman
J. Singer, Statutes and Statutory Construction § 46.06 (rev.
6th ed. 2000) (alteration in original))).

       We agree with the District Court that, while § 552B
prohibits a plaintiff from recovering the benefit of its bargain
with the defendant in a negligent misrepresentation case, it
allows such a plaintiff to recover the lost benefit of a contract
formed with an entity other than the defendant. And we can
conceive of no principled reason to believe that the
Pennsylvania Supreme Court would adopt § 552B—as
Intertek urges—yet effectively read the words “with the
defendant” out of it. Accordingly, we predict that the
Pennsylvania Supreme Court would adopt § 552B and
interpret it as allowing benefit-of-the-bargain damages (and
lost profit damages) in a negligent misrepresentation case
except when those lost profits stem from a plaintiff’s contract
with the defendant.

                               2

      Because the District Court did not err in identifying
and interpreting the applicable legal standard, we next
consider whether the jury’s award was rational, keeping in
mind that our standard of review of a jury’s compensatory
award is “exceedingly narrow.” 

. If
both parts of the jury’s award—$725,000 for past and
$320,000 for future damages—are supported by some
evidence in the record, we must uphold the award.



                               15
        The jury’s future damages award was supported by the
facts. At trial, Brand called an accounting expert to testify
regarding its lost future profits. He testified that the amount
that Brand had lost due to Intertek’s misrepresentations was
somewhere between $439,000 and $1 million over the next
decade. The jury reduced that range to $320,000 because the
expert’s analysis did not fully persuade them. Juries may
discount evidence based on credibility determinations, and
that’s exactly what happened here.

       The past damages award of $725,000 was likewise
rational. Absent Intertek’s misrepresentation that the
Thermablasters met the ANSI standard, Brand would have
learned of the safety issues with the heaters prior to large-
scale production; at that point, David Brand testified, those
problems would have been “very easy” to fix. App. 943. The
jury therefore could have rationally concluded that, but for
Intertek’s tort, the problems with the Thermablasters would
have been resolved at little cost to Brand. Brand then would
have fulfilled its contract with Ace and made, as the
accounting expert testified, a profit of about $147,000. This
profit was the difference between $467,276 (the amount
Brand received from Ace pursuant to their contract) and
$320,368 (the amount Brand paid Reecon for the
Thermablasters). Instead of earning that profit, however,
Brand wound up owing a $611,060 judgment (an amount
equal to Ace’s purchase price plus costs and interest) when it
delivered the faulty heaters to Ace.

       Compensatory damages “are intended to redress the
concrete loss that the plaintiff has suffered by reason of the
defendant’s wrongful conduct.” Cooper Indus., Inc. v.
Leatherman Tool Grp., Inc., 

, 432 (2001) (citing
Restatement (Second) of Torts § 903; Pac. Mut. Life Ins. Co.



                              16
v. Haslip, 

, 54 (1991) (O’Connor, J., dissenting)).
Here, the jury’s past compensatory damages award did just
that. The award canceled out the $611,060 judgment against
Brand (and provides for interest and costs incurred by Brand
in pursuing its rights against Intertek). By effectively
eliminating that judgment (a “concrete loss” to Brand), the
past compensatory award restored Brand to the position it
would have been in absent Intertek’s tort—with a net profit
on the Ace contract of about $147,000. For the reasons stated
previously, we believe that the Pennsylvania Supreme Court
would permit recovery of such benefit-of-the-bargain
damages. Accordingly, the past compensatory award, like the
future compensatory award, was rational, and the District
Court did not err in allowing it to stand.

                              C

        Intertek argues that the jury’s $5 million punitive
damages award was improper on three separate grounds.
First, it argues that punitive damages are per se unavailable
for negligent misrepresentation claims. Alternatively, it
claims there was no factual basis for the District Court to
instruct the jury on punitive damages in this case. Finally, it
argues that even if the instructions were proper, the jury’s
punitive award violated the Due Process Clause of the
Fourteenth Amendment. We consider each argument in turn.

                              1

      Intertek contends that a Pennsylvania jury may never
award punitive damages in a negligent misrepresentation
case. We exercise plenary review over this legal question.

; Walden v. Georgia-Pacific Corp.,

, 513 (3d Cir. 1997). As the District Court




                              17
correctly acknowledged, this argument presents a narrow
question of first impression, as neither our Court nor the
Supreme Court of Pennsylvania has addressed whether
punitive    damages      are   available    for   negligent
misrepresentation claims.

        Our analysis of this argument does not begin on a
blank slate, though. The Pennsylvania Supreme Court has
held that punitive damages may be awarded in negligence
cases if the plaintiff proves greater culpability than ordinary
negligence at trial. Hutchison ex rel. Hutchison v. Luddy, 

, 773 (Pa. 2005). In Hutchison, the court stated that
while a showing of ordinary negligence cannot support a
punitive damages award, “neither is there anything in law or
logic to prevent the plaintiff in a case sounding in negligence
from undertaking the additional burden of attempting to prove
. . . that the defendant’s conduct not only was negligent but
that the conduct was also outrageous,” such that it warrants
punitive damages. 

“The penal and deterrent
purpose served by . . . punitive damages is furthered when the
outrageous conduct occurs in a case sounding in negligence
no less than when an intentional tort is at issue.” 

background, Intertek asks us to declare
that negligent misrepresentation claims are so different from
other “case[s] sounding in negligence” that they can never be
grounds for punitive damages awards in Pennsylvania. In
effect, Intertek requests us to predict that the Pennsylvania
Supreme Court would create an exception specifically for
negligent misrepresentation cases to the general rule it
announced in Hutchison. We decline to do so.

       As with its primary compensatory damages argument,
Intertek’s claim that punitive damages are per se unavailable



                              18
for negligent misrepresentation claims under Pennsylvania
law is based on Restatement § 552B. It argues that punitive
damages are unavailable for such claims because § 552B
authorizes only compensatory damages. Although Intertek is
correct that § 552B does not expressly authorize punitive
damages— it states instead that a negligent misrepresentation
plaintiff may recover damages “necessary to compensate the
plaintiff for the pecuniary loss to him of which the
misrepresentation is a legal cause,” Restatement (Second) of
Torts § 552B(1)—its argument is still mistaken.

        Unlike Intertek, we ascribe no significance to that
section’s omission of punitive damages. In fact, it would be
unusual if § 552B did specifically indicate that punitive
damages are available for negligent misrepresentation. By
definition—and unlike compensatory damages—punitive
damages are left to the discretion of the jury and need not be
defined on a tort-by-tort basis. Accordingly, the Restatement
defines punitive damages generally, untethered to any
individual tort, as “damages, other than compensatory or
nominal damages, awarded against a person to punish him for
his outrageous conduct and to deter . . . similar conduct in the
future.” 

While punitive damages may not be
awarded for actions that “constitute ordinary negligence,”
§ 908 (like § 552B) gives no indication that any specific tort
falls outside the realm of those for which punitive damages
may be awarded. 

cmt. b.

       Our view is supported by Restatement § 549, which
defines    the     damages      available   for   fraudulent
misrepresentation—an intentional tort for which Intertek
concedes that punitive damages are available—and likewise
makes no mention of punitive damages. Instead, that section
authorizes a plaintiff to recover compensatory damages: “the



                              19
pecuniary loss to him of which the misrepresentation is a
legal cause.” 

The fact that the fraudulent
misrepresentation section of the Restatement also fails to
mention punitive damages strongly suggests that § 552B’s
similar omission is of no import. Section 552B does not, as
Intertek claims, foreclose punitive damages for negligent
misrepresentation.

         In addition to its § 552B argument, Intertek tries to
distinguish Hutchison by arguing that unlike the plaintiff in
that case, who sued an employer for negligent supervision
and could not have sued for an intentional tort, Brand could
have sued for intentional (that is, fraudulent)
misrepresentation. It fails to explain, however, why this
difference matters. The nonexistence of a related intentional
tort claim is not a prerequisite to obtaining punitive damages
pursuant to a negligence claim. Punitive damages may be
awarded in Pennsylvania for reckless conduct, 

–72—that is, conduct less culpable than
intentional or willful action. A plaintiff can sue for negligence
and prove recklessness, yet still be unable to prove intent, as
the Hutchison court implicitly acknowledged. This is true
irrespective of the existence of a parallel intentional tort.

       Hutchison announced a broad rule for punitive
damages in the negligence context: “We see no reason . . . to
distinguish between claims sounding under Section 317 [of
the Restatement, the section setting forth the elements of the
negligent supervision claim at issue in Hutchison] and other
actions sounding in negligence for purposes of punitive




                               20
damages.”2 

Giving due regard to that opinion, we
likewise refuse to conjure a strained distinction between
Section 552 claims and all other negligence claims. We
therefore hold that Hutchison generally permits a plaintiff to
undertake the additional burden of proving the heightened
culpability required to sustain a punitive damages claim in
negligence suits—and in negligent misrepresentation cases
specifically. “It may be that, as a practical matter, it proves
more difficult to sustain a claim for punitive damages [in a
negligence case] . . . . But, that is a matter for proof that
attends the particular case . . . .” 

argues that even if punitive damages are
available for negligent misrepresentation claims in
Pennsylvania, the District Court’s decision to instruct the jury
on punitive damages was not rationally based on facts
adduced at trial. Although in most situations we review the
decision to give a jury instruction for abuse of
discretion, Eshelman v. Agere Sys., Inc., 

, 439
(3d Cir. 2009), our Court has chosen a different path when the
jury instruction at issue is one regarding punitive damages, so

       2
         The Pennsylvania Supreme Court decided Hutchison
about two months after it decided Bilt-Rite, which opened the
door to negligent misrepresentation cases in Pennsylvania.
Given the cases’ temporal proximity, if the Hutchison court
didn’t intend for its holding to apply broadly to all negligence
actions—including those authorized just two months earlier
by Bilt-Rite—it likely would have said so, perhaps by noting
that the availability of punitive damages for negligence is a
question that needs to be evaluated on a claim-by-claim basis.
It made no such statement.



                              21
we review this decision de novo, Alexander v. Riga, 

, 430 (3d Cir. 2000).

       In Pennsylvania as elsewhere, “[t]he state of mind of
the actor is vital” in determining whether punitive damages
may be awarded. Feld v. Merriam, 

, 748 (Pa.
1984). “Ordinary negligence . . . will not support an award of
punitive damages. Rather, to justify an award of punitive
damages, the fact-finder must determine that the defendant
acted with a culpable state of mind, i.e., with evil motive or
reckless indifference to the rights of others.” Hutchinson v.
Penske Truck Leasing Co., 

, 983–84 (Pa. Super.
Ct. 2005) (citation omitted). Brand does not contend that
Intertek acted with evil motive, so the question is whether
there was sufficient evidence in the record showing that
Intertek acted with reckless indifference such that a punitive
damages instruction was permissible.

        It takes a special type of recklessness to justify
punitive damages in Pennsylvania. “[A] punitive damages
claim must be supported by evidence sufficient to establish
that (1) a defendant had a subjective appreciation of the risk
of harm to which the plaintiff was exposed and that (2) he
acted, or failed to act, as the case may be, in conscious
disregard of that risk.” 

. That
“conscious disregard” is critical: “[A]n appreciation of the
risk is a necessary element of the mental state required for the
imposition of [punitive] damages.” Martin v. Johns-Manville
Corp., 

, 1097 n.12 (Pa. 1985), abrogated on
other grounds by Kirkbride v. Lisbon Contractors, Inc., 

(Pa. 1989). For our Court to uphold the District
Court’s decision to instruct the jury on punitive damages,
therefore, we must find evidence in the record that Intertek
actually knew its conduct was placing Brand at risk of harm.



                              22
        The District Court pointed to several pieces of
evidence that, in its view, showed the recklessness that
merited a punitive damages instruction. That evidence
included: (1) Intertek’s lack of experience testing to the
specific ANSI standard applicable to the Thermablaster and
its lack of disclosure about that inexperience; (2) Curkeet’s
testimony that he helped write ANSI Z.21.11.2b and knew
how complicated it was, yet only loosely oversaw the China
facility responsible for testing to it; (3) the language issues
arising from the lack of translation at the China facility; (4)
the testimony of a defense expert that the China facility had
committed major errors in testing; and (5) Intertek’s reference
to an incorrect standard—one that regulates barbecue grills,
not heaters—in the footer of a testing form.

        Intertek’s argument, reduced to its essence, is that the
evidence simply did not show the subjective knowledge of
risk that is required to support a punitive damages instruction
in Pennsylvania. We disagree. Curkeet’s testimony, in
particular, allowed the jury to find not only that a reasonable
person would have recognized the risk of harm to Brand
caused by Intertek’s misrepresentations, but also that Intertek
was actually aware of that risk. As the man ultimately
responsible for testing heating-related products, Curkeet knew
that such products pose serious risks to consumers if they are
faulty. He knew that manufacturers and consumers relied on
Intertek’s testing. Nevertheless, Intertek lacked a “complete
process” to ensure that its facilities performed tests correctly
and consistently. App. 802. Despite that deficiency, and
although Curkeet knew that Intertek’s operations would be
improved if its facilities around the globe shared best
practices with each other, Intertek took no steps to improve its
procedures and thereby reduce risk.




                              23
       The evidence related to language-barrier issues
provided further support for a punitive damages instruction.
Although it was “obvious” that Intertek’s Chinese engineers
had problems with English, App. 800, the company chose not
to provide translations of complicated, technical safety
standards to them, despite the fact that those engineers were
directly responsible for ensuring that the standards were met.3
The risks inherent in that decision came to fruition when
“something got lost in translation” in the Thermablaster
testing. App. 802. And this wasn’t a one-time issue—Curkeet
acknowledged that engineers had been caught slacking off
and failing to fully test products in the past.

        Curkeet’s testimony about his experience drafting the
ANSI standard is further evidence of subjective recklessness.
He knew that the applicable standard was new and that
Intertek had not yet tested to it. Moreover, because he was on
the drafting committee, he had firsthand knowledge of the
standard. Yet he chose not to supervise the China facility and
did not instruct them to call him immediately if any problems
arose. The resulting harm to Brand was avoidable; had
Curkeet more closely supervised the China facility, he
testified, the testing problems would not have occurred.

        To summarize, Intertek knew that its testing was
critical to the economic welfare of manufacturers and the

       3
         Intertek argues that it didn’t translate the standards
because doing so can result in “lost jargon.” Intertek Br. 41.
But that argument is counterproductive: the fact that Intertek
consciously chose not to provide translations shows that
Intertek had subjective awareness of Brand’s (and other
customers’) risk of harm as a result of the language issues. It
recognized that risk and proceeded in spite of it.



                              24
health of consumers. It knew that its testing process had
holes, and it knew that problems had arisen in the past as a
result. It knew that it had not yet tested to ANSI Z.21.11.2b, a
standard Curkeet helped author. And it knew that its Chinese
engineers might have difficulties understanding the standard
because it was written in English. In the face of these
compounding risks, Intertek chose to proceed without
instituting additional precautions or process redesigns. In
other words, the company subjectively knew of, and
consciously disregarded, a risk of harm to Brand.

        The District Court stated in its post-trial opinion that
“Intertek admitted during trial that it knew or had reason to
know of the high degree of risk” its actions led to. Brand
Mktg. Grp., 

, at *14. As Intertek correctly
points out, having reason to know of a risk is not enough,
under Pennsylvania law, to support a punitive damages
award. “Instead, [Pennsylvania] requires the more culpable
mental state of conscious indifference to another’s safety . . . .
There must be some evidence that the person actually realized
the risk and acted in conscious disregard or indifference to it.”
Burke v. Maassen, 

, 182 (3d Cir. 1990) (citing

). We find the District Court’s
misstatement in this regard harmless. An error is harmless “if
it is highly probable that [it] did not affect the outcome of the
case.” McQueeney v. Wilmington Trust Co., 

,
917 (3d Cir. 1985). Here, the District Court’s legal
misstatement almost certainly had no effect on the outcome of
the case—Curkeet’s testimony, in particular, showed that
Intertek was actually aware that inadequate testing placed
Brand at a risk of harm and that it consciously chose not to
mitigate that risk.




                               25
       Intertek also criticizes the District Court’s
characterizations of certain facts. But to the extent that the
Court       mischaracterized      relevant      facts,    those
mischaracterizations also were harmless. For example, the
District Court stated that Intertek “tested to wholly
inapplicable safety standards,” using a barbecue grill standard
rather than the correct one. Brand Mktg. Grp., 

, at *15. The record doesn’t bear that characterization
out—Curkeet’s testimony, which was uncontradicted on this
point, indicates that the China facility used an old document
template and forgot to change the document’s footer, but
ultimately tested to the correct standard. And the District
Court, in discussing testimony of Intertek’s general counsel,
stated that that testimony would have allowed a jury to find
that “the goal of the business dealings between the parties
(from [Intertek’s] perspective) was to make it ‘painful’ and
‘personally difficult’ for [Brand].” 

As Intertek
points out, the witness never acknowledged that he had made
any statement to that effect; in fact, he denied recalling any
such conversation. Even if Intertek is correct that the District
Court erred in discussing both facts, though, those errors were
harmless given the numerous other pieces of evidence
evincing Intertek’s knowledge and disregard of risk that were
presented at trial.

        That evidence, while perhaps less than a smoking gun,
provided a sufficient factual basis to support an instruction
regarding punitive damages to the jury. The District Court did
not err in giving that instruction.

                               3

      Intertek’s final challenge to the punitive damages
award is a constitutional one. Even if the District Court



                              26
correctly interpreted the facts and Pennsylvania law as
authorizing an instruction on punitive damages, Intertek
argues, the jury’s award violated the Fourteenth
Amendment’s Due Process Clause. In our “role as
gatekeeper” we review de novo a District Court’s decision
upholding the punitive damages award. CGB Occupational
Therapy, Inc. v. RHA Health Servs., Inc., 

, 189,
193 (3d Cir. 2007) (quoting Inter Med. Supplies, Ltd. v. EBI
Med. Sys., Inc., 

, 468 (3d Cir. 1999)). More
particularly, we must determine “whether the punitive
damage award is so ‘grossly disproportional’ to [Intertek’s]
conduct as to amount to a constitutional violation.” Willow
Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 

, 230 (3d
Cir. 2005) (quoting Cooper 

).

        The Due Process Clause “prohibits a State from
imposing a ‘grossly excessive’ punishment on a tortfeasor.”
BMW of N. Am., Inc. v. Gore, 

, 562 (1996)
(citing TXO Prod. Corp. v. Alliance Res. Corp., 

,
454 (1993)). The Supreme Court has established three
guideposts to determine whether a punitive damages award
was grossly excessive: (1) the degree of reprehensibility of
the defendant’s actions; (2) the disparity between the harm or
potential harm suffered by the plaintiff and its punitive
damages award; and (3) the difference between the punitive
damages award and the civil penalties authorized or imposed
in comparable cases. 

–75. The District
Court did not, and we will not, address the third
consideration, as it would be unhelpful because there are not
comparable cases with civil penalties for negligent
misrepresentation. See CGB 

–
90 (noting that the third subfactor was “not instructive here”
and declining to address it); Inter Med. 

468 (finding the third guidepost “unhelpful” in evaluating
punitive damages for tortious interference and related
common law torts). We therefore focus on the first two
factors: the reprehensibility of Intertek’s conduct and the
disparity between the compensatory and punitive damages
awards.

       The reprehensibility of Intertek’s conduct is “[p]erhaps
the most important indicium of the reasonableness of a
punitive damages award.” 

. Because it’s
so important to this analysis, the Supreme Court has provided
further detail on this guidepost, instructing courts to consider
the extent to which the following subfactors are satisfied:

       [1] the harm caused was physical as opposed to
       economic; [2] the tortious conduct evinced an
       indifference to or reckless disregard of the
       health or safety of others; [3] the target of the
       conduct had financial vulnerability; [4] the
       conduct involved repeated actions or was an
       isolated incident; and [5] the harm was the
       result of intentional malice, trickery, or deceit,
       or mere accident.

CGB 

(quoting State Farm
Mut. Auto. Ins. Co. v. Campbell, 

, 419 (2003)).
We also have indicated that a plaintiff’s improper conduct
may be relevant. See Inter Med. 

(noting that the fact that the plaintiff had breached contracts
and engaged in tortious acts was “[a]nother factor that tends
to mitigate the need for a high punitive damages award”).

      The District Court found that the first subfactor
weighed in favor of Intertek; the second, third, and fourth




                              28
subfactors weighed in favor of Brand; and the fifth subfactor
had a neutral effect. Intertek argues that all five subfactors,
plus Brand’s purportedly wrongful conduct, favor it. Most of
Intertek’s arguments amount to quibbles with the District
Court’s factual determinations, which we cannot disturb
unless they are clearly erroneous. CGB 

. In that vein, it argues that the District Court erred
by concluding that (1) Intertek acted recklessly (subfactor
two); (2) Brand was financially vulnerable (subfactor three);
and (3) Intertek repeatedly performed sloppy testing work
(subfactor four).

       Our review of the trial record leads us to conclude that
none of these factual determinations was clearly erroneous.
There was evidence that Intertek acted recklessly—including,
especially, Curkeet’s testimony. 

Part III.C.2. The
District Court supported its finding of financial vulnerability
by noting that neither David Brand nor his company could
pay the Ace judgment because the company was so reliant on
the Ace contract that the deal’s collapse left Brand teetering
on the edge of financial ruin. Brand Mktg. Grp., 

, at *18. And the District Court’s finding of repeated
misconduct was supported by Curkeet’s testimony, which
included statements about Intertek’s incomplete testing
process and previous breakdowns. 

Part I.B. We
therefore reject Intertek’s fact-based arguments regarding
reprehensibility.

       In addition to its factual claims, Intertek makes a legal
argument with respect to the second subfactor. The District
Court found that Intertek’s actions showed reckless disregard
of Brand’s rights and consumers’ health and safety, as faulty
testing of malfunctioning heaters could place consumers in
serious danger. Intertek argues that the District Court erred in



                               29
considering potential harms to consumers rather than harm to
Brand alone. That consideration, it argues, ran afoul of the
Supreme Court’s admonition that punitive damage awards not
be used “to punish and deter conduct that [bears] no relation
to [the plaintiff’s] harm.” State 

.

       This issue—whether courts may consider harm to the
public, rather than harm to the plaintiff only—is not settled by
precedent. State Farm provides the most pertinent Supreme
Court pronouncement on the issue. In that case, a Utah jury
awarded a plaintiff $145 million in punitive damages (against
$1 million in compensatory damages) in a suit against State
Farm for fraud, bad faith, and intentional infliction of
emotional distress. 

After the trial court reduced
the punitive award to $25 million, the Utah Supreme Court
reinstated the $145 million award pursuant to its application
of Gore’s three-pronged analysis. 

        In reinstating the award, the Utah Court relied “in
large part” on evidence of State Farm’s corporate policy of
denying or capping insurance claims to meet fiscal goals,
even though doing so was not in their customers’ best
interests and was sometimes fraudulent. 

“Evidence pertaining to [this policy] concerned State Farm’s
business practices for over 20 years in numerous States. Most
of these practices bore no relation to . . . the type of claim
underlying the [plaintiffs’] complaint against the company.”

The Supreme Court reversed, applying the Gore
factors and holding that the punitive damages award was “an
irrational and arbitrary deprivation” of State Farm’s property.

      The Supreme Court held that the Utah Supreme Court
should not have “condemned [State Farm] for its nationwide



                              30
policies rather than for the conduct directed toward the
[plaintiffs].” 

Those policies, while unsavory, were
dissimilar to the conduct at issue and occurred in states
outside Utah, where the conduct may not have been illegal.

Federalism principles, the Court noted,
counseled against allowing Utah to penalize out-of-state
conduct that other states permitted—“each State alone can
determine what measure of punishment, if any, to impose on
a defendant who acts within its jurisdiction.” 

        As important as federalism was to the Supreme
Court’s decision, it stated that the punitive damages award
was constitutionally improper “[f]or a more fundamental
reason . . . : The [Utah] courts awarded punitive damages to
punish and deter conduct that bore no relation to the
[plaintiffs’] harm. A defendant’s dissimilar acts, independent
from the acts upon which liability was premised, may not
serve as the basis for punitive damages.” 

Process
Clause, the Court stated, “does not permit courts, in the
calculation of punitive damages, to adjudicate the merits of
other parties’ hypothetical claims against a defendant under
the guise of the reprehensibility analysis.” 

       State Farm thus shows that, although courts may
consider other instances of misconduct by the defendant in
evaluating a punitive damages award, that conduct must be
“of the [same] sort” as the conduct that injured the plaintiff.

that, by considering harm to the public
rather than harm to Brand alone, the District Court violated
this mandate, especially because “no one—and certainly not
Brand or his company—was physically injured from Brand’s
products.” Intertek Br. 54.




                              31
        Intertek overreads State Farm. That decision does not
prohibit the consideration of potential public harm in addition
to the plaintiff’s injury. It prohibits only the consideration of
conduct that is unrelated to the plaintiff’s case. Unlike the
companywide policies in State Farm—which spanned two
decades, many states, and a wide variety of actual conduct—
Intertek’s actions in this case involved one series of incidents:
its negligent communications to Brand about the
Thermablaster testing. The District Court didn’t consider, for
example, testing errors that occurred at different Intertek
facilities and involved different products over the course of
many years—something that would have run afoul of State
Farm—but instead focused only on the misconduct related
directly to this case. The fact that the harm may have
expanded beyond Brand’s own harm doesn’t matter because
the District Court correctly focused only on the conduct at
issue without considering “independent” harms.4

       Moreover, unlike the widespread public harm
considered in State Farm (which had no conceivable
connection to the plaintiffs in that case other than the fact that
State Farm inflicted it), the potential public harm here is
directly tied to Brand. As the creator and seller of the heaters,
Brand surely would have been sued by any person injured by
a Thermablaster. The company would have been vulnerable
       4
         The fact that no one was physically injured by the
Thermablasters is unimportant. What matters is that Intertek
acted in reckless disregard of the risk of harm; that the risk
did not come to fruition is a product of chance for which
Intertek should not be rewarded. And the District Court’s
determination that there was evidence of recklessness vis-à-
vis public safety was not clearly erroneous. 

Part
III.C.2.



                               32
to dozens of lawsuits and perhaps millions of dollars in
liability if the heaters in fact caused harm to the public. Thus,
potential harm to the public was necessarily potential harm to
Brand, and Intertek does not dispute that harm to Brand
should be considered in this analysis.

        “Punitive damages may properly be imposed to further
a State’s legitimate interests in punishing unlawful conduct
and deterring its repetition.” 

. The
District Court’s consideration of potential public harms—
which were integrally related to Brand’s harm—furthered that
interest. State Farm instructs that a court may not search far
and wide for unrelated instances of wrongful conduct by a
defendant. But neither should a court wear blinders in
conducting a due process analysis, remaining purposely
oblivious to all harmful effects of a defendant’s conduct that
do not directly befall the plaintiff, even when those harms
arise from the precise conduct at issue.

      In sum, because the potential harm to the public in this
case did not arise from the “defendant’s dissimilar acts,
independent from the acts upon which liability was
premised,” we hold that the District Court did not err in
considering it. State 

.

       As for the disparity between the compensatory and
punitive awards, Intertek calculates the ratio between the two
based on the compensatory award it thinks should have been
given: $320,368. If that were the compensatory award, the
punitive-to-compensatory ratio would have been greater than
15:1. But the actual compensatory damages award we upheld
($1,045,000) yields a ratio of less than 5:1. Although the
Supreme Court has repeatedly “decline[d] . . . to impose a
bright-line ratio” for due process purposes, “[s]ingle-digit



                               33
multipliers are more likely to comport with due process,
while still achieving the State’s goals of deterrence and
retribution, than awards with [significantly higher ratios].” 

In light of our analysis of the reprehensibility
guidepost, a 5:1 ratio is not the type of gross disparity
between compensatory and punitive damages that renders a
punitive award suspect by itself.

       Thus, both analytical guideposts indicate that the
punitive damages award in this case did not violate due
process. We will affirm the District Court’s decision
regarding punitive damages.

                               D

       Intertek’s final argument is that a new trial is
warranted because the jury’s verdicts—on Brand’s claim for
negligent misrepresentation and Intertek’s counterclaim for
trademark infringement—were inconsistent. It argues that the
jury could not rationally have concluded both that Intertek’s
misrepresentations caused Brand’s injury and that Brand
infringed on Intertek’s trademark. “We review the district
court’s order ruling on a motion for a new trial for abuse of
discretion unless the court’s denial is based on the application
of a legal precept, in which case the standard of review is
plenary.” Lightning Lube, Inc. v. Witco Corp., 

,
1167 (3d Cir. 1993).

       According to Intertek, Brand’s infringement—which
occurred when the company emblazoned the Thermablaster
boxes with Intertek’s seal of approval prior to receiving
permission to do so—would have caused Brand the same
injury it suffered even if Intertek had not committed any
misrepresentation, so Brand’s conduct was a legally




                               34
superseding cause of its own loss. As a result, it argues, the
District Court’s denial of Intertek’s motion for a new trial was
an abuse of discretion.

        But Intertek does not explain how, if it had not
negligently misrepresented that the Thermablasters met the
ANSI standard, Brand’s infringement would have caused the
same injury Brand actually suffered. In a parallel universe
where Intertek’s Test Data Sheet correctly indicated that the
heaters did not comply with the standard, David Brand
testified that he would have sought to rectify the problem.
Brand therefore would not have provided Ace with faulty
heaters, and Ace would have had no reason to demand its
money back and eventually obtain a judgment against Brand.
Although Brand would have incurred some incremental costs,
it would not have suffered the same injury even if it still
infringed on Intertek’s mark. Instead, it would have
committed trademark infringement and possibly owed some
damages to Intertek, but it would not have lost its Ace-related
profits.

       It is possible that, in that parallel universe, Brand
would have ignored Intertek’s warnings that the
Thermablasters did not meet the safety standard and would
have proceeded to sell them to Ace anyway (while still using
Intertek’s certification mark without permission). Brand
might then have suffered the same injury even absent
Intertek’s misrepresentation. But it’s not for us to give
credence to such a hypothetical version of events, “[f]or a
search for one possible view of the case which will make the
jury’s finding inconsistent results in a collision with the
Seventh Amendment.” Atl. & Gulf Stevedores, Inc. v.
Ellerman Lines, Ltd., 

, 364 (1962). Rather, we
must affirm the District Court unless there is no possible way



                              35
to reconcile the jury’s verdicts. See id.; cf. Gallick v. Balt. &
Ohio R.R. Co., 

, 119 (1963) (“[I]t is the duty of
the courts to attempt to harmonize the answers [to special
interrogatories], if it is possible under a fair reading of
them . . . .”). The District Court did not abuse its discretion.

                               IV

       For the reasons stated, we will affirm the order of the
District Court denying Intertek’s post-trial motion.




                               36
FISHER, Circuit Judge, dissenting in part.
        I join all but Sections III-C-2 and III-C-3 of the
opinion of the Court. I part ways with the majority on the
question of the sufficiency of the evidence to support the
punitive damages jury instruction. I believe the majority
misapplies the standard for punitive damages under
Pennsylvania law and, in so doing, unduly waters down the
necessary showing to support a punitive award.
        Punitive damages are an “extreme remedy.” Martin v.
Johns-Manville Corp., 

, 1098 n.14 (Pa. 1985)
(plurality opinion), abrogated on other grounds by Kirkbride
v. Lisbon Contractors, Inc., 

(Pa. 1989). They
“are penal in nature and are proper only in cases where the
defendant’s actions are so outrageous as to demonstrate
willful, wanton[,] or reckless conduct.” Hutchison ex rel.
Hutchison v. Luddy, 

, 770 (Pa. 2005). As noted
correctly by the majority, for reckless conduct to support a
punitive award, the plaintiff must show “that (1) a defendant
had a subjective appreciation of the risk of harm to which the
plaintiff was exposed and that (2) he acted, or failed to act . . .
in conscious disregard of that risk.” 

Grossly
negligent conduct is insufficient. 

.
So, as stated by the majority, to affirm the District Court’s
decision to instruct the jury on punitive damages, “we must
find evidence in the record that Intertek actually knew its
conduct was placing Brand at risk of harm.” Maj. Op. 24.
        Put simply, I believe the evidence in this case does not
justify a punitive damages award. Like the majority, I believe
Frederick Curkeet’s testimony is vital. I agree further that
Curkeet’s testimony shows that Intertek understood its
important role of preventing unsafe products from reaching
the marketplace and that companies and consumers alike
relied on Intertek to perform this role properly. But Intertek’s



                                1
knowledge of this general risk of harm is not enough; the
evidence must show that Intertek knew its specific conduct in
this case placed Brand at risk of harm. See generally 

–1100 (holding that knowledge of general
safety risks posed by asbestos was not enough to show
subjective appreciation of the specific risks faced by
insulation workers installing asbestos). I also acknowledge
that Curkeet testified to instances where Intertek engineers
had made “pretty major mistakes” and “slack[ed] off on the
job and sa[id] things complied without running the test,” App.
841–42, but I note the absence of any specifics regarding the
nature and circumstances of these mistakes. The majority
attempts to fill this absence, but I think it requires us to
reverse.
        The majority overstates much of Curkeet’s testimony.
First, the majority relies on Curkeet’s admission that Intertek
did not always have “best practice documents,” i.e., one set of
forms used by every Intertek lab that spelled out specifically
how to run a particular safety test, and instead sometimes
relied on labs to create their own forms locally for a specific
test. App. 802. This testimony may show that Intertek knew
that it was not perfect (what company is?) and had room to
improve (what company doesn’t?), but it does not show that
Intertek knew that relying on labs in some cases to create
their own forms placed Brand at risk of harm. The majority
speculates that “problems had arisen in the past as a result” of
these “testing process . . . holes,” Maj. Op. 26, but Curkeet
never testified that the lack of standard forms had ever caused
the kinds of mistakes that occurred in this case. The lack of
rigorous uniformity does not equate to recklessness, and if an
admission of imperfection or lack of absolute uniformity
opens the door to punitive damages whenever something goes




                               2
wrong, Pennsylvania companies may be in for a rude
awakening.
       Nor do I agree with the majority that the punitive
damages instruction is supported by Intertek’s decision to test
the Thermablasters in China using standards written in
English. The majority relies on Curkeet’s admission that
Intertek’s Chinese engineers had “‘obvious’” problems with
the English language. Maj. Op. 25. What Curkeet actually
said, however, was far more innocent. He said that Intertek’s
Chinese engineers “are essentially trained in engineering in
English for the most part”; that “their knowledge of English,
written English and technical English[,] is actually very
good”; and that “they certainly have the training to deal with
[the] English language in engineering functions,” though they
may not write English as easily as native speakers. App. 800–
01. As for the decision not to translate the standards into
Chinese, Curkeet explained that Intertek decided it was better
for Chinese engineers to work with English standards based
on its assessment that the “specific terminology” in the
English safety standards would not “translate to Chinese . . .
very well.” App. 801. He also said that, in his experience, the
Chinese engineers “have been very able” to deal with English
safety standards. 

Curkeet admitted it was
“obvious” that English was not the Chinese engineers’ first
language, nothing in his testimony suggests that Intertek
knew that it placed Brand at risk of harm by having Chinese
engineers apply English standards.
       The majority finds additional evidence of Intertek’s
reckless conduct because, according to the majority, this was
not a “one-time issue” given Curkeet’s testimony about
engineers slacking off and failing to correctly run tests. Maj.
Op. 25. But again, Curkeet never said what these past
mistakes entailed and certainly never said they involved



                              3
translation issues, so these prior bad experiences do not show
that Intertek subjectively appreciated a risk of harm created
by any translation issues here. Additionally, in rejecting
Intertek’s argument that it chose not to translate the safety
standards from English to Chinese to avoid “‘lost jargon,’”
the majority concludes that Intertek’s choice actually shows
that Intertek subjectively appreciated the risk of harm to
Brand from any language issues. Maj. Op. 25 n.4. I disagree.
If anything, it shows that Intertek decided a risk existed
(perhaps incorrectly) and avoided it, not the other way
around. I therefore fail to see where the evidence is that
Intertek knew that it placed Brand at risk of harm by having
Chinese engineers interpret English standards.
        Finally, the majority finds support for the punitive
damages instruction in Curkeet’s acknowledgment that the
safety standard at issue was new and complex, yet the testing
proceeded without Curkeet’s direct supervision or
instructions. I might agree with the majority if Curkeet
testified that he knew at the time that he needed to instruct the
engineers to seek his personal help to interpret this standard
or that Intertek had any prior bad experiences testing to new
safety standards. But Curkeet only said he would do things
differently in retrospect and never mentioned any prior bad
experiences with new standards, instead noting that Intertek
“regularly” worked with new standards. App. 855.
        In sum, Brand pursued a negligence claim and
presented sufficient evidence to support that claim. Although
Pennsylvania law permitted Brand to go the extra mile by
proving not just negligence but outrageous conduct to support




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a punitive damages award, see 

, I
simply believe Brand came up short.1
       I respectfully dissent.




       1
         Because I conclude that the evidence was insufficient
for the District Court to instruct the jury on punitive damages,
I would not reach Intertek’s constitutional challenge to the
punitive damages award.



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