Lompe v. Sunridge Partners, LLC

818 F.3d 1041, 2016 U.S. App. LEXIS 6053, 2016 WL 1274898

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 1, 2016
• Docket: No. 14-8082
• Status: Published

Opinions

I. INTRODUCTION

McHUGH, Circuit Judge.

This appeal challenges the jury’s award of punitive damages in a personal injury action. Amber Lompe was exposed to high levels of carbon monoxide (CO) from a malfunctioning furnace in her apartment at the Sunridge Apartments in Casper, Wyoming. Ms. Lompe brought a diversity action in the Federal District Court for the District of Wyoming against Sunridge Partners LLC (Sunridge) and Apartment Management Consultants, L.L.C. (AMC), the owner and the property manager, respectively, of the Sunridge Apartments. The jury found both Defendants liable for negligence and awarded Ms. Lompe compensatory damages totaling $3,000,000 and punitive damages totaling $25,500,000, of which the jury apportioned $3,000,000 against Sunridge and $22,500,000 against AMC.

On appeal, Defendants argue the district court erred in failing to grant their motion for judgment as a matter of law (JMOL) as to punitive damages. Alternatively, they contend the district court’s jury instructions on punitive damages were erroneous and the amount of punitive damages awarded against each Defendant was excessive under common law and constitutional standards. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we hold the evidence was insufficient to submit the question of punitive damages to the jury as to Sunridge and the amount of punitive damages awarded against AMC is grossly excessive and arbitrary in violation of the Due Process Clause of the Fourteenth Amendment. Accordingly, we vacate the award of punitive damages against Sun-ridge and reduce the punitive damages awarded against AMC from $22,500,000 to $1,950,000.

II. JURISDICTION

Before addressing the merits of the issues on appeal, we pause to consider our subject-matter jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (holding that federal courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party”). In her Complaint, Ms. Lompe alleged she is a citizen of Wyoming and Defendants are each limited liability companies (LLCs) with principal offices in Utah. In their responsive pleadings, neither Defendant identified the citizenship of each of the members of the respective LLCs. Nevertheless, the district court asserted jurisdiction based on the diversity of citizenship. See 28 U.S.C. § 1332.

But federal courts must treat LLCs as partnerships for purposes of establishing jurisdiction. Americold Realty Trust v. Conagra Foods, Inc., — U.S. -, 136 S.Ct. 1012, 1015; 194 L.Ed.2d 71 (2016) (affirming the Tenth Circuit’s holding that “the citizenship of any ‘non-corporate artificial entity’ is determined by considering all of the entity’s ‘members’”); Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1237-38 (10th Cir.2015) (“Supreme Court precedent makes clear that in determining the citizenship of an unincorporated association for purposes of diversity, federal courts must include all the entities’ members.”). Accordingly, to ensure we have jurisdiction over this matter, we requested more information about the citizenship of each of the members of the LLCs. United States v. Battles, 745 F.3d 436, 447 (10th Cir.2014) (“It is axiomatic that we are obliged to independently inquire into the propriety of our jurisdiction.”). The parties stipulated to supplemental jurisdictional facts showing the members of Sunridge are each citizens of California and the members of AMC are all citizens of Utah. Based on that information, we conclude the district court properly exercised jurisdiction over this matter under 28 U.S.C. § 1332, and we have-jurisdiction over this appeal under 28 U.S.C. § 1291.

III. BACKGROUND

Ms. Lompe was a twenty-year-old student at Casper College when she moved into the Sunridge Apartments in September 2010. On February 1, 2011, Ms. Lompe was evacuated from her apartment unit and taken to the hospital after a gas company employee detected high levels of CO emanating from her apartment. Ms. Lompe was treated for acute CO poisoning and as a result of this incident has suffered from various neurological conditions including cognitive deficits, chronic headache, sleep disturbance, and emotional disorders. She has been prescribed a variety of antiseizure,,, migraine, mood stabilizing, and,sleep stabilizing medications. Based on her injuries, Ms. Lompe filed this action against Sunridge and AMC, alleging they violated their duty of care as property owner and manager of the Sunridge Apartments. After the district court denied Defendants’ motion for summary judgment, the ease proceeded to trial.

A. The Trial

Our review requires a detailed examination of the trial record because Defendants challenge "the district court’s decisions denying JMOL on punitive damages and affirming the constitutionality of the punitive damages awarded against each Defendant. See Deters v. Equifax Credit Info. Servs., 202 F.3d 1262, 1268 (10th Cir.2000) (explaining we review a district court’s denial of a motion for JMÓL de novo, “applying the same legal standard as the district court”). Defendants are “entitled to judgment as a matter of law only if all of the evidence, viewed in the light most favorable to the nonmoving party, reveals no legally sufficient evidentiary basis to find for the non-moving party.” Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1195 (10th Cir.2012) (internal quotation marks omitted). Separately, we must conduct an “exacting” de novo review of the constitutionality of the punitive damages award. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). We therefore begin with a review of .the relevant evidence presented to the jury.

1. Sunridge’s Ownership of the Apartments, Relationship with AMC, and Lack of Involvement in Management

In 2007, Mr. Bob Ctvrtlik¹ and his brother Jeff formed Sunridge Partners, LLC to purchase, the Sunridge Apartments, an apartment complex in Casper, Wyoming, consisting of ninety-six units. The Ctvrtliks, who reside in Southern California, had seven years of real' estate investment experience at the time they purchased the apartments. They considered themselves “passive real estate investors,” meaning that they would purchase properties and then hire another company to manage and maintain them.

Before purchasing the Sunridge Apartments, Sunridge obtained a “Property Condition Report” from LandAmerica, which was intended to “observe and document readily visible materials and building system defects which might significantly affect the value of the property, and determine if conditions exist which may have a significant impact on the continued operation of the facility.” The report provided a general assessment of the apartment complex, ranking the condition of various components as excellent, good, fair, or poor, including the forced air heating system.

Constructed in 1979, most of the apartments were still heated by the original furnaces when Sunridge purchased the complex in 2007, though some had been replaced. The LandAmerica report identified the heating portion of the complex’s broader HVAC system as “forced air gas fired furnaces” and ranked the complex’s HVAC system as “fair,” meaning that although it' was in average or satisfactory condition, “some' short term and/or immediate ' attention is required or recommended, primarily due to the normal aging and wear of the building system, to return the system to a good condition.” Although the report did not identify replacing the furnaces as an immediate concern, it recommended the property owner set aside a capital reserve of $153,600 to replace the furnaces on a rolling basis over the course of the next five years.

Sunridge hired AMC as property manager to run the day-to-day operations of the apartments based on Sunridge’s previous favorable experience using AMC to manage other properties! The management agreement between Sunridge and AMC required AMC to seek prior written approval from Sunridge before making any purchase over $1,000, except in the case of an emergency. The agreement further provided that if AMC made an emergency expenditure, it must report that purchase to Sunridge within twenty-four hours. AMC was also required to provide a monthly accounting to Sunridge detailing by category the apartment . complex’s monthly income and expenses. AMC received a fee of 3.4% of the complex’s monthly gross income as compensation for its services. The fee was not affected by expenses.

Sunridge relied exclusively on AMC to determine ,what repair? and other capital expenditures should be made at the Sun-ridge Apartments. Contrary to the management agreement’s provision that AMC must notify Sunridge of large or emergency purchases, the evidence at trial indicated that AMC provided only-monthly financial statements that described expenses in general categories. Likewise, there is no direct evidence that AMC notified Sun-ridge of any CO-related incidents or furnace repairs. And Bob Ctvrtlik testified that AMC did not communicate this information to Sunridge.

2. AMC’s Day-to-Day Management Role and Maintenance of the Furnaces

The trial evidence showed that AMC had exclusive knowledge about the day-today management of the apartment complex and the maintenance or condition of the furnaces.

a. Training, maintenance, and CO detectors

Mr. Few, AMC’s property manager at the apartment complex,' lived on the same floor as Ms. Lompe. He testified AMC provided him with no safety or HVAC training after hiring him. Similarly; neither Scott Kemberling, the apartment complex’s maintenance employee at the time of Ms. Lompe’s CO incident, nor anyone else who worked at the Sunridge Apartments, received any training on furnace maintenance, even though' Mr. Kem-berling had requested such training. AMC did nothing to inspect, clean, or maintain the furnaces to ensure their safety. During semiannual, move-in, and move-out inspections of each apartment, AMC replaced furnace filters but did nothing further to inspect the furnaces for functionality or safety. And Candice Capi-telli, AMC’s regional property manager since May 2010, conceded on cross-examination that she had not been fully aware of all the issues she should have known about “in terms of the furnaces at Sunridge Apartments” before Ms. Lompe’s CO poisoning.

Stephanie Brooks, AMC’s regional property manager until May 2010, testified that in her experience, it was more common to repair furnaces as they presented problems than to institute a preventive maintenance program. Although a professional HVAC contractor did not periodically inspect all-the furnaces, AMC’s semiannual inspection of each apartment and furnace included “clean[ing] them, changing] the furnace filters, and just identifying] if there are any type of issues.”

An inspection conducted just after Ms. Lompe’s CO incident revealed that only about half of the Sunridge Apartment units had working CO detectors. ¹ But a semiannual inspection report of Ms. Lompe’s apartment conducted two years before she lived there indicated “[replaced Batt on C02 [sic].” Moreover, several invoices from • 2010 evidenced AMC’s purchase of CO detectors. And Mr. Few said he replaced CO detectors in the units any time they were discovered missing.

Valerie Lynne Mesenbrink, a manager at the apartments in 2007 who was promoted to .a senior manager position in 2008, testified about continual problems with the complex’s furnaces since 2007. She said AMC had not done any safety maintenance or inspections on the furnaces between 2007 and Ms. Lompe’s CO poisoning in 2011. Instead AMC’s policy was to have a CO detector in each apartment and to test and “go over” it with each tenant upon move-in. Ms. Mesenbrink also indicated that AMC amended the tenants’ lease agreements in 2009 to'include a fine for removing ór unplugging CO detectors.

,John Haid, the owner of Haid’s Plumbing & Heating in Casper, Wyoming, provided maintenance and repair services at Sunridge Apartments for about twenty years. AMC periodically requested bids from Mr. Haid for a preventive safety inspection on all the furnaces. Mr. Haid provided only oral bids, and AMC never accepted one. Mr. Haid told AMC employees they should regularly inspect and maintain furnaces, particularly as they age... Mr. Haid occasionally repaired furnaces that SourceGas, the local gas company, had red-tagged to indicate the furnace was dangerous and could not be operated until repaired or replaced. AMC called him when a tenant at Sunridge Apartments smelled gas or an apartment had no heat, but Mr. Haid was never called to do any safety inspections.

According to Mr. Haid, AMC’s approach to furnace maintenance was consistent with other apartments or buildings he serviced; Even though Mr. Haid did not believe it was safe to operate furnaces until they fail or break down without inspecting them, he conceded that, many other property managers also take this .approach, Indeed, Mr. Haid testified that few apartment complexes have adopted a preventative maintenance program.

6. Previous incidents and furnace problems '

At trial, Ms. Lompe elicited testimony about four ÓO incidents at the Sunridge Apartments — her own and three others. The first incident occurred on January¹23, 2009, when Mr. Haid serviced a furnace that had been red-tagged by the gas company “possibly for a [CO] tester going off or something or they smelled gas.” He cleaned the heat exchanger, replaced the gas valve, pilot assembly,¹ and setup.

The second , incident happened in October 2009, when Mr. Few was exposed to CO while in the complex’s clubhouse and was treated at the hospital for 'CO poisoning. The clubhouse did not have a CO detector because no one slept there. After the incident involving Mr. Few, Ms; Mes-enbrink suggested to her employer, AMC, that it should maintain the furnaces better or replace them, but nothing was done. The regional manager, Ms. Brooks, testified she was not aware of any changes to AMC’s furnace inspection policies after Mr, Few’s CO exposure. Mr. Ctvrtlik testified that AMC never informed Sunridge of Mr. Few’s CO- exposure or that, following this incident, AMC had replaced the clubhouse furnace at a cost of over $2,600.

On January 6, 2010, the third CO incident resulted in the ' evacuation of an apartment, but no injuries were reported. At oral argument before this court, counsel for Defendants argued this incident did not involve the Sunridge Apartments, relying. on- a service order produced by Source-Gas. The service order, which is part of the record; was referred to as Exhibit 9 at trial but not admitted into evidence. The first page of the exhibit is a screen shot of a CO leak report, dated January 6, 2010, showing an address that does not match that of the Sunridge Apartments. The second page of this exhibit, however, lists the correct address for the Sunridge Apartments and contains comments about a service call on that date, stating “emergency carbon monoxide leak ... dispatched to Cathy Imus C/O detector was going off at 200 parts per million apt complex evacuated renters.” Whatever question there may be about, the conflicting address information contained in Exhibit 9, it was not brought to the attention of the jury. And Mr. Few testified about a CO leak in January of 2010 that required the evacuation of a unit at the Sunridge Apartments. Accordingly, we consider the January 2010 event as one of those forming the basis of AMC’s knowledge regarding the state of the furnaces prior to the incident involving Ms. Lompe. But . Ms. Lompe did not provide evidence that Sun-ridge was informed of any of the three CO incidents that occurred prior to her own ■CO exposure.

The evidence at trial also included expert testimony regarding the significance of these CO incidents. Over Defendants’ objection, Ms. Lompe offered the expert testimony of Michael Slifka, a Are protection engineer and an expert in the area of property management. Mr. Slifka explained that the complex’s furnaces greatly exceeded their- twenty-year -useful life under industry standards, because they were over thirty years old at the time of Ms. Lompe’s CO exposure. He also testified that the Sunridge furnaces had been “poorly maintained” and that neither Sun-ridge nor AMC was meeting its obligations under industry standards to maintain a safe heating, system. Mr. Slifka further opined that Defendants had received three forms of notice indicating the furnaces were not safe: (1) the LandArn-erica assessment, (2) their knowledge of a number of furnace events starting- in 2009 that involved CO leaks, gas valve failures, or venting problems, and (3) at least three separate CO leaks in the five months pri- or to Ms. Lompe’s CO incident. Based on these indications of the furnaces’ diminishing condition, Mr. Slifka testified that Defendants should have behaved more proactively, rather than simply repairing furnaces on an as-needed basis. According to Mr. Slifka, not doing so put the tenants at risk of harm.

Defendants’ expert, an astrogeophysicist named Dr. Romig, testified that because so many variables are involved in a furnace leak, he could not state that an inspection within the previous six months could have prevented the incident involving Ms. Lompe. But upon cross-examination, Dr. Romig conceded that the maintenance issues and previous CO incidents at the apartments “should have prompted a decision to look into getting new furnaces.”

c. Ms. Lompe’s poisoning

Mr. Few testified that he arrived at the complex’s office at about 7:30 a.m. on February 1, 2011. At about 9:30 a.m. he went to Ms. Lompe’s floor to deliver a lease renewal to another tenant. Outside Ms. Lompe’s apartment, Mr. Few detected an odor reminiscent of the smell he encountered during his CO exposure in 2009. He called SoureeGas, which dispatched a technician to the Sunridge Apartments. The technician, Mr. Mike Coryell, detected high levels of CO on Ms. Lompe’s floor. Mr. Few and Mr. Coryell removed Ms. Lompe from her apartment and then immediately called 911 and evacuated the area. Shortly after ventilating Ms. Lompe’s apartment, Mr. Few sent Mr. Kemberling to look for a CO detector in the unit. Mr. Kemberling-testified that he found an unplugged CO detector in the apartment unit at that time. Following Ms. Lompe’s incident, Mr. Kemberling inspected each unit to verify whether it had a functioning CO detector, finding that many units.did not. ■ .

Mr. Coryell testified that he responded to the emergency -dispatch order at the complex on February 1, 2011. Mr. Cor-yell’s CO detector sounded an alarm immediately as he entered the building, indicating a CO level of at least twenty-five parts per million. When he reached Ms. Lompe’s floor, a second level alarm sounded, indicating at -least fifty parts per million. . Mr. Coryell explained that this is the level at which, an evacuation should take place, which he implemented,. beginning with Ms. Lompe. Mr. Coryell testified that Ms. Lompe, “from a sitting position right at the door, reached up and opened the door and then slumped back down____ She was not able to stand up. She ... crawled out into the hallway.” Upon opening Ms. Lompe’s door, Mr. Coryell’s meter began reading 500 parts CO per million. He then told Mr. Few to call 911, and Ms. Lompe was taken to the hospital.

After ventilating Ms. Lompe’s apartment, Mr. Coryell red tagged her furnace and, after inspecting the other furnaces on Ms. Lompe’s floor, also red tagged her neighbor’s furnace because it too was emitting CO. He testified that he did not remember seeing any CO detectors on Ms. Lompe’s floor, including in Ms. Lompe’s or her neighbor’s apartments. Mr. Coryell, also- testified that furnaces should have some maintenance work or an inspection conducted at least every other year. On cross-examination,. however, Mr. Coryell reiterated that in his post-incident inspection of all -the furnaces, on Ms. Lompe’s floor, he red tagged only two of them. And he stated that he had seen furnaces on other occasions that were “dirty and starting to accumulate, but they were not plugged. They were not putting out carbon monoxide. They were not a danger.”

Mr. Haid testified that AMC hired him to repair or replace the furnaces that had been red tagged by SourceGas in Ms. Lompe’s and her neighbor’s apartments. Mr. Haid had to replace Ms. Lornpe’s furnace but was able to repair her neighbor’s. When he replaced Ms. Lompe’s furnace, Mr. Haid saw a GO detector in her apartment.

Ms. Lompe also testified. She stated that no one explained any safety features when she moved into Sunridge and although she found what she believed to be a CO detector in her unit, it did not appear to work properly even after she replaced the battery. Assuming the CO detector was broken, arid believing it had belonged to the prior tenant (because CO detector was not listed on the move-in sheet), Ms. Lompe had thrown it away. ■

3. Renewed Motion for JMOL

After the close of evidence, Defendants moved for JMOL. As to punitive damages, Defendants argued that M¡s. Lompe had not presented evidence sufficient to show that either Defendant had acted willfully and wantonly, with a conscious disregard for the safety of the tenants and knowing or 'having reason to know with a high degree of probability- that the conduct would- result in harm, as required by Wyoming law. The district court denied Defendants’ motion and allowed the question of punitive damages to go to the jury as to both Defendants, recognizing, however, that punitive damages are a “disfavored form of relief’ in Wyoming and that the evidence in this case was “weak ... because it is a failure to act rather than an act done in a negligent way”; that is, “it is an act that smacks highly "of inattention on the part of the defendants in this case as well as" ignorance.”

4. Jury Instructions

Defendants proposed two instructions on punitive damages. Proposed instruction 11 stated “Willful and wanton misconduct has been defined as: that which tends to take on the aspect of highly unreasonable conduct, or an extreme departure from ordinary care) in a situation where a high degree of danger is apparent.” Defendants’ proposed instruction 12 provided the following further guidance: “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate- that he acted with a state of mind that approaches intent to do harm.” These proposed instructions incorporated language from Danculovich v. Brown, 593 P.2d 187, 191 (Wyo.1979) and Cramer v. Powder River Coal, LLC, 204 P.3d 974, 979 (Wyo.2009), respectively. But the district court refused both, instructions, providing instead Jury Instruction No. 42, modeled on the Wyoming Civil Pattern Jury Instructions:

Punitive damages are allowable, in a proper case, to punish the defendant and to deter the defendant and others similarly situated from engaging in similar conduct jn the future.

If you find ;that plaintiff Amber Lompe is entitled to recover compensatory damages as a result of either defendant’s conduct, you may in your sole judgment and discretion award additional punitive damages against that defendant if, and only if, you find by a preponderance of the evidence that that defendant was guilty of willful and wanton misconduct____

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences, and under such circumstances and conditions that a reasonable person would know, or have reason to know, that such conduct would, with a high degree of probability, result in harm to another.

In response to the jury’s request during deliberations for a definition of “wanton,” the district court referred the jury back to Instruction 42 and 'additionally provided the jury with a definition of “wanton” that was identical to Defendants’ proposed instruction Tl, quoted above.

5. Jury Verdict

The jury found by a preponderance of the evidence that AMC, Sunridge, and Ms. Lompe had each been negligent in' the circumstances 'resulting in her injury, apportioning the fault 65% to AMC, 25% to Sunridge, and 10% to Ms. Lompe. Thus, the jury’s verdict reduced the $3,000,000 compensatory damages award by 10% to $2,700,000 to reflect Ms. Lompe’s share of fault for her injury. This award included amounts for economic loss, loss of enjoyment of life, disability, and $950,000 for “[p]ain, suffering, and emotional distress (past and future).” AMC’s portion of the compensatory damages award was $1,950,000, and Sunridge was responsible for $750,000. The jury also found by a preponderance of the evidence that punitive damages- should be awarded against both Sunridge and AMC, necessitating a second phase- of the trial for the jury to decide the amount of punitive. damages.

B. Punitive Damages Phase

In the punitive damages phase of the trial, Ms. Lompe called Dr. Paul Randle as an expert witness on Defendants’ financial condition. Dr. Randle testified as to the income and profitability of Sunridge and AMC. As to AMC, Dr. Randle summarized its income, expenses, and members’ share of income from 2007 through 2012 using gross and net income figures from the members’ tax returns. Dr. Randle explained that nearly all of AMC’s net income was distributed to its owners, with a total distribution between 2005 and 2012 of $22,860,142. Factoring executive salaries into this amount, Dr. Randle opined the total partner income for those years was over $24 million.²-

After closing arguments, the jury deliberated and returned a punitive damages award of $25,500,000, assessing $3,000,000 against Sunridge and $22,500,000- against AMC.- . ■

C. Denial of Post-Verdict Motion for JMOL

After the close of trial, Defendants renewed their motion for JMOL or, in the alternative, for a new trial’ or remittitur, challenging the sufficiency of the evidence for the jury’s verdict of liability, compensatory damages, and entitlement to punitive damages, as well as the jury instructions on punitive damages and the amount of punitive damages. The district court denied Defendants’. motion . in its entirety. Lompe v. Sunridge Partners, LLC, 54 F.Supp.3d 1252, 1270-71 (D.Wyo.2014) (concluding. Ms. Lompe presented sufficient eyidenee of willful and wanton misconduct to send the question of punitive damages to the jury, the jury was properly instructed! on- the standard for punitive damages under Wyoming law, and the punitive damages award was “within' the realm of punitive damages that does not cross the constitutional line”). As to the punitive damages challenge, the district court concluded the ratio of punitive damages to compensatory damages was “9-to-1 (considering the total punitive damages award for both defendants collectively).” Id. at 1270.³ Moreover, the district court explained the ratio as to Sunridge individually was 1:1 ($3,000,000 to $3,000,000) and 7.5:1 as to AMC individually ($22,500,000 to $3,000,000). Id.

The district court acknowledged, however, “that the award of punitive damages is significant and far greater than that usually seen in this district,” stating that “[i]n all probability, the Court likely has not made such a large award for punitive damages.” Id. at 1271. The district court nevertheless denied defendants’ request for a remittitur or new trial, concluding that “[w]hile surprising, the award does not shock the judicial conscience nor is the Court compelled to conclude that the jury’s award should be upset, based on the facts and circumstances of the defendants’ conduct and the harm to the plaintiff and potential harm to others.” Id.

IV. DISCUSSION

In this appeal, Defendants argue the district court erred in (A) denying their motion for JMOL as to punitive damages because the evidence was insufficient to show willful and wanton misconduct and because Ms. Lompe had failed to prove Defendants’ net worth,⁴ (B) improperly instructing the jury on Wyoming’s standard for punitive damages, (C) denying their motion for a remittitur or new trial because the punitive damages award was excessive under Wyoming common law standards, and (D) awarding punitive damages that are grossly excessive and arbitrary under the Fourteenth Amendment. We address each argument in turn.

A. Motion for JMOL on Submitting Punitive Damages to the Jury

We review the district court’s denial of JMOL de novo. Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1200 (10th Cir.2012). But we will reverse the district court “only if all of the evidence, viewed in the light most favorable to the nonmoving party, reveals no legally sufficient evidentiary basis to find for the non-moving party.” Id. (internal quotation marks omitted). “[W]e will not weigh the evidence, judge witness credibility, or challenge the factual conclusions of the jury” and “we may not substitute our judgment for that of the jury.” Rocky Mountain Christian Church v. Bd. of Cty. Comm’rs, 613 F.3d 1229, 1235-36 (10th Cir.2010) (internal quotation marks omitted). When applying this standard in diversity cases, “the substantive law of the forum state governs the analysis of the underlying claims, including specification of the applicable standards of proof, but federal law controls the ultimate, procedural question whether judgment as a matter of law is appropriate.” Jones, 674 F.3d at 1195 (internal alteration and quotation marks omitted). This is a deferential standard because, even though the district court makes a de novo determination about the sufficiency of the evidence, it must defer to the jury’s determinations as the fact finder.

Defendants argue (1) the evidence was insufficient to show either party engaged in willful and wanton misconduct, and (2) Ms. Lompe failed to prove Defendants’ net worth as required by Wyoming law. . We reverse as tp Sunridge and affirm as .to AMC.

1. Willful and Wanton Misconduct under Wyoming Law

Under Wyoming law, punitive damages are disfavored “and are to be allowed with caution within narrow limits.” Weaver v. Mitchell, 715 P.2d 1361, 1369 (Wyo.1986). Punitive damages are only appropriate for “circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct.” Cramer v. Powder River Coal, LLC, 204 P.3d 974, 979 (Wyo.2009) (internal quotation marks omitted). The Wyoming Supreme Court defines willful and wanton misconduct as- “the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to-another.” Id. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind.” ' Id. (internal quotation marks omitted). A willful or wanton state of mind is one “that approaches intent to do harm,” Id. (internal quotation marks omitted). We apply this punitive damages standard in determining whether the trial evidence sufficiently showed that each Defendant’s actions constituted the willful and wanton misconduct required to submit the question of punitive damages to the jury as a matter of law.

a. Insufficient evidence of willful and wanton misconduct as to Sunridge

Our review of1 the record convinces us that, “viewed in the light most favorable to” Ms. Lompe, “the evidence and all reasonable inferences to be drawn from it point but one way” — that they do not show willful and wanton misconduct by Sunridge. See Rocky Mountain Christian Church, 613 F.3d at 1235. The trial evidence establishes Sunridge purchased the property for investment purposes and hired á reputable property manager to take care of the day-to-day management of the apartments. Sunridge owner Mr. Ctvrtlik believed, based on his prior favorable experience, that he could rely on AMC to' ensure safe conditions at Sun-ridge. Whether Wyoming law allows such a delegation of a duty from a passive real estate investor-owner to a residential property management company is not relevant to the question of whether 'Sunridge exhibited willful and wanton misconduct for purposes of assessing punitive damages.⁵ Instead, the propriety of delegating such a duty relates to a negligence analysis, which is not before us.⁶

Furthermore, Mr. Ctvrtlik testified that he' had no knowledge of Mr. Few’s CO poisoning in 2009 and that Sunridge, as opposed to AMC, had received no complaints about the furnaces. The only evidence Ms. Lompe could present to show Sunridge had any knowledge about the condition of the furnaces — or any potential danger resulting from the age of the furnaces — was the LandAmerica report, which had recommended somewhat generically that reserves be set aside to replace the furnaces on a rolling basis over a five-year period. Noticeably absent from the LandAmerica report is any warning that the furnaces posed a potential danger to tenants. And the evidence at trial indicated that the policy employed at the Sun-ridge Apartments of replacing furnaces as they failed was not an “extreme departure from ordinary care.” Danculovich v. Brown, 593 P.2d 187, 191 (Wyo.1979).

At oral argument before this court, Ms. Lompe’s counsel identified as the best evidence of Sunridge’s willful and wanton misconduct meriting punitive damages under Wyoming law an inference that Sun-ridge must have known about Mr. Few’s CO poisoning because of certain provisions in Sunridge’s contract with AMC. Specifically, counsel argues Sunridge must have been aware of Mr. Few’s CO poisoning because the management agreement requires AMC to seek approval from Sun-ridge for any expense exceeding $1,000 or to notify Sunridge within twenty-four hours of any emergency expenses. And the evidence shows that replacing the clubhouse furnace after Mr. Few’s incident cost over $2,600.

But the unimpeached evidence establishes that Sunridge relied entirely on AMC to manage the apartment complex. Mr. Ctvrtlik testified that Sunridge received only the monthly financial reports from AMC, which listed expenses and income in general categories. And, while language in the management agreement may have required AMC to provide notice for large expenses, Ms. Lompe presented no evidence showing AMC, in fact, notified Sunridge of expenses related to, or that Sunridge had actual knowledge of, Mr. Few’s CO incident or any other CO leaks prior to Ms. Lompe’s exposure.⁷ Similarly, even if. AMC regional managers should have forwarded maintenance bids on the furnaces to Sunridge for approval, Ms. Lompe fails to cite any evidence showing Sunridge actually received such bids. In fact, the evidence elicited at trial shows to the contrary. But even accepting that Sunridge was provided with the bids to replace certain furnaces, it had no reason to assume AMC would not respond appropriately to whatever circumstances had created the need to do so.⁸ Sunridge relied on AMC to manage the property competently and had prior experience suggesting that such' trust was warranted.

Thus, even if the evidence of Sunridge’s minimal involvement in the operation of the apartments could support a finding’ of negligence, it is insufficient as a matter of law to establish the willful and wanton misconduct necessary to support an award of punitive damages in Wyoming. See Weaver, 715 P.2d at 1370 (“Punitive damages are not appropriate in circumstances involving inattention, inadvertence, thoughtlessness, mistake, or even gross negligence.” (citing Danculovich, 593, P.2d at. 191))., Accordingly, we reverse the district court’s denial of JMOL as to Sun-ridge because the trial evidence was insufficient to send the question of punitive damages to the jury.

b. Punitive damages were appropriately submitted to the jury as to AMC '

Defendants also contend the evidence was insufficient to show AMC’s actions constituted willful and wanton misconduct. They argue that AMC relied on the services of trained professionals such as Mr. Haid and always repaired,or replaced furnaces when problems arose. Defendants also emphasize AMC’s policy of providing a CO detector in each apartment unit even though not required to- do so by Wyoming law. And they insist AMC did not fail to do anything that any tenants requested after Mr. Few’s CO incident.

Viewing the evidence in the light most favorable to Ms. Lompe, we conclude a reasonable jury could find AMC engaged in willful and wanton misconduct warranting punitive damages under Wyoming law. Specifically, AMC was on notice of the dangerous condition of the complex’s fleet of furnaces well before Ms. Lompe’s CO incident. AMC knew the furnaces were nearly thirty years old despite having a useful life of about twenty years, and AMC failed to act bn b.ids for regular safety inspections of the furnaces despite threé CO leaks at the Su'nridge Apartments prior to Ms. Lompe’s injury. On this record, a reasonable jury could find that AMC intentionally failed to act “in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such [inaction] would, in a high degree of probability, result in harm to another.” See Cramer, 204 P.3d at 979. Specifically, the age of the furnaces, the prior failures, and the proven risk of the. escape'of dangerous levels of CO made it' almost certain that a repair-as-needed maintenance program, in this instance, would result in serious injury to oné or more ténants.' Accordingly, we 'affirm the district court’s denial of JMOL on punitive damages as to AMC. ■

2, Evidence of Net Worth Required by Wyoming Law

We also reject AMC’s argument that the district court should have granted JMOL because Ms. Lompe did not provide sufficient evidence of AMC’s “net worth.”⁹ AMC focuses its argument on one line from' Rosty v. SJcaj, in which the Wyoming Supreme Court, "reversed a punitive damages award because plaintiff “presented no evidence of [the defendant’s] assets or net worth.” 272 P.3d 947, 959 (Wyo.2012). AMC argues that because Ms. Lompe failed to provide evidence of its net worth at the time,of trial, we should likewise reverse the punitive damages award here. We decline to read Rosty as requiring plaintiffs in all contexts to present evidence of a defendant’s net worth at the time of trial to fulfil Wyoming’s rule that “in the absence of evidence of a defendant’s wealth or financial condition an award of punitive damages cannot be sustained.” Id. (quoting Adel v. Parkhurst, 681 P.2d 886, 892 (Wyo.1984)); see also Campen v. Stone, 635 P.2d 1121, 1129-31 (Wyo.1981) (explaining the “New York approach” of bifurcating trials where punitive damages are at issue “makes good sense” because “evidence of a defendant’s wealth, when coupled with evidence' of his culpability, provides a realistic guide for the assessment of damages that will, in fact, punish the defendant. Thus, utilization of evidence of wealth is consistent with the punishment and, deterrence objectives of punitive . damages.” (internal quotation marks and citation omitted)).

Defendants “do not argue that net worth is the only appropriate evidence” of wealth or financial condition. Nevertheless, they misinterpret Rosty as requiring evidence specifically of net worth at the time of trial as a predicate to seeking punitive damages ■in this case. Rosty did not establish such a rigid rule.¹⁰ First, the defendant in Rosty was an individual, and therefore evi-denee of his net worth and assets was likely the only reasonable measure of his wealth. Second, the only evidence offered to establish the financial condition of the defendant in Rosty was a single, .and not particularly current, pay stub. Rosty, 272 P.3d at 959. In contrast, to demonstrate the financial condition of a business entity like AMC, Ms. Lompe could reasonably rely on a variety of financial measures, including profits and losses, net' income, and owner distributions. Ms. Lompe chose to present AMC’s gross and net income and partner distributions for the eight years prior to trial as “evidence of a defendant’s wealth or financial condition” as a predicate for punitive damages. See id.

To the extent AMC believed this evidence was not representative of its real economic condition, it could have presented rebuttal evidence. See Sears v. Summit, Inc., 616 P.2d 765, 772 (Wyo.1980), modified on other grounds by Adel v. Parkhurst, 681 P.2d 886 (Wyo.1984) (“Not only may the plaintiff introduce evidence as to the wealth of the defendant, but the defendant may álso introduce evidence of impecunity in order to mitigate the award of punitive damages.”). But AMC failed to do so. Under these circumstances, we decline to hold Ms. Lompe’s evidence of AMC’s wealth or financial condition insufficient for purposes of submitting the question of punitive damages to the jury.¹¹

B. Jury Instructions on Punitive Damages

AMC argues that even if the district court properly sent the question of punitive damages to the jury, its punitive' damages instruction misstated Wyoming law. We review a district court’s decision to give a particular instruction for an abuse of discretion, but we review the “legal sufficiency of an instruction” de novo. EEOC v. Beverage Distribs. Co., 780 F.3d 1018, 1020 n. 1 (10th Cir.2015).

Rejecting AMC’s two proposed jury instructions on punitive damages, the district court instructed the jurors that they could award punitive damages “if, and only if, you find by a preponderance of the evidence that that defendant was guilty of willful and wanton misconduct.” Modeled on Wyoming Civil Pattern Jury Instruction 4.06, the district court’s Jury Instruction No. 42 also defined “willful and wanton misconduct” as follows:

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences, and under such circumstances and conditions that a reasonable person would know, or have reason to know, that such conduct would, with a high degree of probability, result in harm to another.

See also Cramer v. Powder River Coal, LLC, 204 P.3d 974, 979 (Wyo.2009). And in response to the jury’s request for, a definition of “wanton,” the district court instructed the jury using language identical to AMC’s proposed instruction 11, which included the following language from Danculovich v. Brown, 593 P.2d 187, 191 (Wyo.1979). “Willful and wanton misconduct has been defined as: that which tends to take on the aspect of highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”

Although the district court gave these two instructions on punitive damages, AMC now argues, based on Farmers Insurance Exchange v. Shirley, 958 P.2d 1040 (Wyo.1998), that the district court erred in declining to offer Defendants’ proposed instruction 12 to further define “willful misconduct”¹² in'response to the jury’s request for a definition of “wanton.” In Shirley, the plaintiff sued' an insurancé company for breach of the duty of good faith and fair dealing. Id. at 1042. The district court gave a jury instruction on punitive damages that virtually mirrors Instruction No. 42 here. Id. at 1051. Although the Wyoming Supreme Court in Shirley determined this instruction was an accurate statement of Wyoming law, it held that in the context of a claim of insurer bad faith, the jury needed to be further instructed that “[p]roof of a bad faith cause of action does not necessarily make punitive damages appropriate.” Id. (brackets and internal quotation marks omitted). Specifically, the Shirley Court held the jury should be instructed that “[f]or punitive damages to be awarded in addition to compensatory damages for the tort [breach of the duty of good faith], there must be a showing of an evil intent deserving of punishment or something in the nature of special ill-will or wanton disregard of duty or gross or outrageous conduct. For punitive damages to be awarded, a defendant must not only intentionally have breached his duty of good faith, but in addition must have been guilty of oppression, fraud or malice.” Id. (internal quotation marks omitted).

Even if Shirley is not limited to claims for breach of the duty of good faith, as Ms. Lompe argues, the context here does not raise the same concerns. The intent element of negligence, the underlying tort claim here, is more easily distinguished from the intent required for the willful and wanton misconduct needed to support punitive damages than the intent element at issue in Shirley. Where jury confusion was not likely, there was no requirement that the district court provide further instruction. And although the district court did not give AMC’s proposed instruction 12, explaining that the state of mind' required for punitive damages must approach an intent to harm,¹³ it provided the jury with instructions defining willful and wanton misconduct in language from other Wyoming Supreme Court decisions and modeled after the Wyoming Civil Pattern Jury Instructions. This ■ was not error.

We accordingly hold that under the circumstances here, the juiy instructions as given were an,accurate statement of Wyoming. law on punitive damages.

C. Waiver of the Common Law Excessiveness Challenge

AMC also’argues it is entitled to a new trial or remittitur of the amount of punitiye damages because the award was so excessive that it shocks the judicial conscience under Wyoming law. We agree with Ms. Lompe that AMC has waived this argument by failing to present it properly in the district court. In its post-verdict renewed motion for .JMOL, new trial, or remittitur, AMC correctly cited the legal standard governing a motion for new trial or remittitur on grounds that-a damages award is so excessive that it shocks .the judicial conscience. (Defs.’ Mot. JMOL 10) Rather than pressing this particular common-law excessiveness objection in its argument, however, AMC instead focused exclusively on its objection to the constitutionality of the punitive damages award under the Fourteenth Amendment’s Due Process Clause. But differing standards of review govern each claim. Hardeman v. City of Albuquerque, 377 F.3d, 1106, 1122 (10th Cir.2004) (“Unlike constitutional challenges, we review the district court’s disposition of a motion for remittitur or new trial based on a common law exces-siveness claim for abuse of discretion.”).

We abide by the established principle that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Id. (internal quotation marks omitted) (addressing excessiveness, of punitive damages in the opposite situation where common law excessiveness was argued to the exclusion of unconstitutionality). AMC also contends, however, that the- district court’s discussion of whether the punitive damages award was excessive sufficiently preserves the issue for appeal. The district court indeed included language derived from the common law exces-siveness standard in its discussion of the constitutional due process analysis. Lompe v. Sunridge Partners, LLC, 54 F.Supp.3d 1252, 1267-71. But in addressing AMC’s motion for JMOL, new trial, or remittitur as to the punitive damages phase' of the trial, the district court mixed the analyses of whether a damages award (compensatory or punitive) is overly excessive under the common law and whether an award of punitive damages specifically is grossly excessive and arbitrary under the due process constitutional analysis. Because the district court’s analysis purported to resolve the constitutional due process analysis (even though it couched its ultimate .findings in language relevant to the common-law excessiveness analysis), the district court’s opinion does not preserve the common law excessiveness claim. We therefore decliné to consider it further.

‘ D. Constitutional Due Process Clause Analysis

We now consider Defendants’ argument that the district court erred in finding the amount of the punitive damages award against AMC constitutional under the Due Process Clause of the Fourteenth Amendment. We first discuss the “exacting de novo” review the Supreme Court has mandated in reviewing constitu-: tional challenges to punitive damages awards. We then apply that standard using the Supreme Court’s guidepost analysis in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Finally, we conclude that the punitive damages award against AMC is grossly excessive and arbitrary in violation of constitutional due process, and we reduce it accordingly.

1. Exacting De Novo Review

Due process ' requires federal courts to perform an “exacting” de novó review of the constitutionality of punitive damages awards to ensure “that an award of punitive damages is based upon an ‘application of law, father than a decisionmaker’s caprice.’ ” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513. (2003) (quoting Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (“[C]ourts of appeals should apply a de novo. standard of review when passing- on district courts’ determinations of the constitutionality of punitive damages awards.”)). This- standard differs from the deferential de novo review that a court applies when ruling on a motion for JMOL, new trial, or remittitur.

Although “it is the duty of the trial judge to require a remittitur or a new trial” if “the amount of damages awarded is excessive,” Linn v. United Plant Guard Workers, 383 U.S. 53, 65-66, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), the Seventh Amendment constrains the. trial court to defer to the fact-finding function of the jury, Cooper Indus., 532 U.S. at 437 n. 11, 121 S.Ct. 1678. This fact-finding function encompasses questions of liability and the amount of compensatory damages. Under this deferential standard, when “a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly; or overwhelmingly against the weight of the evidence.” Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir.1999) (internal quotations omitted). As with the JMOL standard, the trial court must view the evidence in the light most favorable to the prevailing party. Id.

The Supreme Court has explained, however, that “[u]nlike the measure of actual damages suffered, which presents a question of historical or predictive fact, the. level of punitive damages is not really a, ‘fact’ ‘tried’ by the jury.” Cooper Indus., 532 U.S. at 437, 121 S.Ct. 1678 (quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 459, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (Scalia, J., dissenting) (other internal citation omitted)). “Because the jury’s award of punitive damages' does not constitute a finding of ‘fact,’ appellate' review of the district court’s determination that an award is consistent with due process does not implicate ... Seventh Amendment concerns.” ' Id. (emphasis added). Although “[a] jury’s assessment of the extent of'a plaintiffs injury is essentially á factual determination,” the jury’s “imposition of punitive damages is an expression of its moral condemnation.” Id. at 432, 121 S.Ct. 1678 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (“[Punitive damages] are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” (alteration as in Cooper Industries))). Moreover, “[a]s the types of compensatory damages available to plaintiffs have broadened, the theory behind punitive damages has shifted toward a more purely punitive (and therefore less factual) understanding.” Id. at 437 n. 11, 121 S.Ct. 1678 (emphasis added, internal citation omitted). Thus, we need not remand for Ms. Lompe “to choose between a new jury trial or acceptance of [a] remittitur” if a reduction in the amount of punitive damages is “required by the Constitution” rather than merely “a court’s determination as to> whether substantial evidence at trial supported the amount awarded.” Jones v. United Parcel Serv., 674 F.3d 1187, 1208 n. 8 (10th Cir.2012).

In ruling on Defendants’ constitutional challenge in this case, the district court improperly applied a deferential standard of review, explaining that it “hesitates to interfere with the jury’s determination as to [the amount of] punitive damages” because “it is not the Court’s province to second-guess the jury’s findings.” Lompe, 54 F.Supp.3d at 1271. This might have been a valid conclusion under the deferential JMOL standard or the new trial or remittitur standards for reviewing the jury’s determination as to liability, compensatory damages, and even for analyzing whether a punitive damages award is overly excessive under the common law. But it is not a correct description of the district court’s responsibility, in reviewing the constitutionality of a punitive damages award under the' Due Process Clause. Because the Supreme Court has dirécted lower federal courts to apply an “exacting” de novo standard of review when considering the constitutionality of a punitive damages award, the district court erred by deferring to the jury’s punitive damages award. We therefore separately analyze the constitutionality of the punitive damages award under the exacting de novo standard mandated, by the Supreme Court.

2. Constitutional Due Process Analysis of the Punitive Damages Award

The Supreme Court has instructed that “[e]lementary 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.” Gore, 517 U.S. at 574, 116 S.Ct. 1589. Consequently, “the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Jones, 674 F.3d at 1206 (alteration and internal quotation marks omitted). In reviewing a constitutional challenge to an award of punitive damages under the Due Process Clause of the Fourteenth Amendment, a federal court must “consider three guideposts: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 418, 123 S.Ct. 1513 (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589). And courts of appeal must apply a de novo standard of review when entertaining a challenge to the district court’s application of. these factors and its determination of the constitutionality of a punitive damages award. Cooper Indus., 532 U.S. at 436, 121 S.Ct. 1678; see also State Farm, 538 U.S. at 418, 123 S.Ct. 1513.

Although our review of the district court’s due process analysis is de.novo, we defer to the jury’s and the district court’s factual findings unless they are clearly erroneous. See Cooper Indus., 532 U.S. at 440 n. 14, 121 S.Ct. 1678 (“While we have determined that the Court of Appeals must review the District Court’s application of the Gore test de novo, it of course remains true that the Court of Appeals should defer to the District Court’s findings of fact unless they are clearly erroneous.”).¹⁴ But a predicate to any obligation to defer is the existence of findings of fact made by the jury or the district court. Here, the jury was not asked to answer special interrogatories. Thus, it rendered only two pronouncements with respect to punitive damages: (1) that AMC’s conduct warranted an award of punitive damages under Wyoming law; and (2) the amount of .punitive damages awarded against AMC should be $22.5 million. Indeed, the district court acknowledged its inability to ascertain anything more about the jury’s view of the evidence based on this record.

The jury’s synthesis of all the testimony, evidence and exhibits received during the trial is not something readily capable of review. What weight they attributed to a witness’s testimony, how they assessed credibility of witnesses, and their consideration of exhibits admitted is not something the Court or the parties can divine on the record of these proceedings.

Lompe, 54 F.Supp.3d at 1267. See also Cooper Indus., 532 U.S. at 449 n. 2, 121 S.Ct. 1678 (Ginsburg, J, dissenting) (criticizing the majority’s adoption of a de novo review standard for reviewing the due process, limits of punitive damages awards and noting that although the de novo standard includes deference to factual findings unless clearly erroneous, “[a]n appellate court might be at a loss to accord such deference to jury findings of fact absent trial court employment of either a special verdict or a general verdict accompanied by written interrogatories”).

With respect to''the jury’s first verdict, we have, already held that the evidence presented at trial is sufficient to support the jury’s finding that AMC’s conduct met the Wyoming threshold for an award of punitive damages.¹⁵ But the jury’s verdict in the liability phase of trial does not inform our constitutional analysis further. And the verdict after the second phase of trial setting the amount of the punitive damages is neither a factual finding nor entitled to deference. See Cooper Indus., 532 U.S. at 437, 121 S.Ct. 1678. Consequently, the jury here made no findings that are relevant to our application of the Gore factors.¹⁶

There is a similar dearth of factual findings by the district court. This is in large measure because the district court improperly applied a deferential standard of review to AMC’s due process challenge.¹⁷ See Lompe, 54 F.Supp.3d at 1270-71 (citing the Gore factors but applying a' common law “passion and prejudice” standard, under which “[a] court’s authority to grant remittitur should be exercised with extreme reluctance.”). In its. discussion of the constitutionality of the punitive damages award, the district court appears to make four findings: (1) the harm to Ms. Lompe was physical, not merely economic; (2) if exposed., longer, Ms. Lompe could have been disabled for life , or killed; (3) the potential for similar injuries to others was great where AMC failed to correct known problems with furnaces, exposing other tenants to the risk of carbon monoxide poisoning; and (4) “[t]his was not an isolated incident.”¹⁸ Id. at 1271. After briefly addressing the relevance of wealth evidence and the purpose of punitive damages, the district court then states “[t]his is the only conduct that is relevant to the reprehensibility analysis.” Id. Thus, we accept these four findings as the district court’s only findings on, reprehensibility and we defer to each of them in analyzing the Gore guideposts under the Supreme Court’s exacting de novo review standard.

Ultimately, federal courts “must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” State Farm, 538 U.S. at 426, 123 S.Ct. 1513. In our review of the constitutionality of the punitive damages award against AMC, therefore, we must primarily decide “whether [the] particular award is greater than reasonably necessary to punish and deter.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The Supreme Court has instructed us to go “no further” if a “more modest punishment” for the “reprehensible conduct” at issue “could have satisfied the State’s legitimate objectives” of punishing and deterring future misconduct. State Farm, 538 U.S. at 419-20, 123 S.Ct. 1513.

a. Reprehensibility

We look first to the degree of reprehensibility of AMC’s 'conduct.¹⁹ “It should be presuméd a plaintiff has been made whole for his injuries by- compensatory damages, so punitive’damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so:reprehensible as to warrant the imposition of fwrther-. sanctions , to achieve punishment or deterrence.” Id. at 419, 123 S.Ct. 1513 (emphasis added) (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589). Gore held that the degree of reprehensibility was “[pjerhaps the most important in-dicium of the reasonableness of a punitive damages award.” 517 U.S. at 575, 116 S.Ct. 1589.

In addressing this issue," courts are to consider the following: (1) Whether-the harm caused was physical as opposed to economic; (2) Whether- the 'defendant acted with indifference or a reckless disregard- for the health or safety of others; (3) the financial vulnerability of the plaintiff; (4) whether the defendant’s wrongful conduct involved repeated actions or was an isolated incident; and (5) whether the harm was the result of intentional malice, trickery, or deceit, or mere, accident. ,.

Jones, 674 F.3d at 1207 (citing State Farm, 538 U.S. at 419, 123 S.Ct. 1513).

Addressing the first factor, the district court has found the harm here was physical, and that finding is not clearly erroneous. Ms. Lompe suffered injuries consistent with CO poisoning, and the record reflects at least the possibility she' will have lingering physical injuries for many years,' possibly the rest of her life.²⁰ But the compensatory damages award reflected both physical harm and economic loss.- The jury awarded Ms. Lompe general damages in the- form of compensatory damages totaling $1,450,000 for pain, suffering, and emotional distress (past and •present), disability, and loss of enjoyment of life. The - jury also awarded her $1,550,000 in damages for loss of future earning capacity and medical expenses (past and future) to compensate her for her economic loss.

Skipping to the third Gore factor, it is true that as a low income college student, Ms. Lompe was financially vulnerable. But as. a practical matter, the financial vulnerability factor does not have particular relevance in this case, where the harm Ms. Lompe suffered was physical rather than a reprehensible exploitation of financial vulnerability through fraud or other financial misconduct.' Here, Ms.' Lompe’s financial vulnerability reflects at most her unequal bargaining power in negotiating the lease or in interactions about unpaid rent or fees. However, we find such matters tangential to the constitutionality of the amount' of punitive damages in this case.

’ We analyze the second, fourth, and fifth factors together because they relate to AMC’s actions — or inaction — as the on-site management company responsible for the day-to-day business of managing the buildings and tending to regular maintenance. The district court found that AMC failed to correct known problems with the furnaces and that AMC’s inaction risked exposing all of the complex’s tenants to CO poisoning. Nevertheless, neither the jury nor the district court found that AMC acted with the intent to harm Ms. Lompe or any other tenants. Thus, we conclude AMC’s failure to act was not the “result of intentional malice, trickery, or deceit,” and was instead a “mere accident,” See State Farm, 538 U.S. at 419, 123 S.Ct. 1513. See also Jones, 674 F.3d at 1207.

Notwithstanding that conclusion, the evidence at trial showed that AMC’s failure to act was not an isolated incident but rather- resulted from AMC’s “wrongful conduct involv[ing] repeated actions,” or in this case, repeated failures to act. Jones, 674 F.3d at 1207. That is, three prior CO leaks, including one in which Mr. Few was poisoned, put AMC on notice that the furnaces needed regular substantive safety inspections to prevent future dangerous releases of CO. Failing to perform such inspections recklessly endangered not only Ms. Lompe, but also all the tenants at the apartment complex, and the risk included death. See Philip Morris USA v. Williams, 549 U.S. 346, 354-57, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) (holding that punitive damages cannot be used to punish the defendant for harm to nonparties, but that the risk of harm to nonparties can be considered in assessing reprehensibility).

But we cannot .ignore the evidence that distances AMC’s misconduct from the “extreme reprehensibility” end of the constitutional reprehensibility spectrum in the due process analysis. AMC was never cited or criticized by SourceGas or other regulators in Wyoming for the condition of the furnaces or the incidents in which Mr. Few or Ms. Lompe were poisoned. Moreover, AMC provided each tenant with a CO detector even though this was not required by state.law or industry custom. The evidence regarding the effectiveness of providing these monitors was mixed. Although AMC amended the lease agreements to provide sanctions for tampering with the CO monitors, an inspection immediately after Mr. Lompe was poisoned revealed that many units lacked functioning CO monitors. There was also some evidence to suggest AMC conformed to industry standards in dealing with the aging fleet of furnaces by repairing them as problems arose. But Ms. Lompe provided expert testimony opining that annual inspections should have been performed, and further precautions should have been implemented after Mr. Few’s exposure.²¹'

On balance, application of the Gore factors does not support a conclusion that AMC’s conduct was particularly reprehensible.²² It is true that AMC engaged in a pattern of “wrongful conduct,” evidenced by indifference to the prior CO leaks, the fact the furnaces were well past their useful life, and that CO exposure could cause serious injury or death to the residents of the Sunridge Apartments, But AMC’s wrongful conduct consisted of a failure to act rather than any intent to injure through affirmative conduct, and thus was not “the result of intentional malice, trickery, or deceit,” Jones, 674 F.3d at 1207 (citing State Farm, 538 U.S. at 419, 123 S.Ct. 1513), which the Supreme Court has identified as an indication of “particularly reprehensible conduct,” Gore, 517 U.S. at 576, 116 S.Ct. 1589. Although AMC’s failures to act are deserving of punishment beyond the compensatory award, we are not convinced that its failures to act were so particularly reprehensible that due process would allow such a severe punishment as the $22,500,000 in punitive damages awarded here.²³

b. Ratio between punitive damages award and compensatory damages

“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.”- Gore, 517 U.S. at 580, 116 S.Ct. 1589. But the Supreme Court’s guidance on the proper ratio between punitive and compensatory damages is difficult to apply.²⁴ On the one hand, the Court has explained that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm, 538 U.S. at 425, 123 S.Ct. 1513. And the Court has likewise found historical support for “sanctions of double, treble, or quadruple damages to deter and punish,” all of which qualify as single digit ratios: 2 to 1; 3 to 1; 4 to 1. Id. The Court further instructs .that these historical ratios “demonstrate what should be obvious,” which is that “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution.” Id. This suggests that up to a 9:1 ratio of punitive damages to compensatory damages is likely acceptable in some cases, and that a 10:1 ratio might be permissible because it does not exceed 9:1 to a significant degree.

But, on the other hand, the Supreme Court questions the propriety of single digit ratios that exceed 4:1, stating “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Id. (citing Haslip, 499 U.S. at 23-24, 111 S.Ct. 1032 (1991)), The Court further explains that even a 2:1 ratio may be unconstitutional in some circumstances: “When compensatory damages- are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” Id..The Supreme Court has not defined' “substantial” in this context and has been “reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award.” Id. at. 424, 123 S.Ct. 1513 (citing Gore, 517 U.S. at 582, 116 S.Ct. 1589); see also id. at 425, 123 S.Ct. 1513 (“[T]hese ratios are not binding, they are instructive.”-). Ultimately, however, “[t]he precise award” of punitive damages “must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” Id. Against this backdrop, we now undertake our de novo review of the award against AMC. ‘

We begin by examining the amount of compensatory damages. As discussed, the jury awarded Ms. Lompe $3,000,000 in compensatory damages, including $1,450,000 for pain, suffering, and emotional distress (past and present), disability, and ‘ loss of enjoyment of life, and $1,550,000 for loss of future earning capacity and medical expenses (past and future). This amount was reduced by 10% to account for Ms. Lompe’s contributory negligence, resulting in a compensatory damages award of $2,700,000.

In reviewing the alleged unconstitutional excessiveness of the punitive award, the district "court created a ratio .for each Defendant by comparing the punitive damages award assessed against each Defendant individually ($3,000,000 against Sunridge and $22,500,000 against AMC) to the full’Compensatory damages award of $3,000,000. The district court thus calculated a 1:1 ratio for Sunridge and a 7.5:1 ratio for AMC. This calculation was incorrect because it did not, first, reduce the compensatory amount to $2,700,000 to account for Ms. Lompe’s own negligence or, next, compare the proportion of the punitive damages award assessed against each Defendant with only that Defendant’s individual portion of the total compensatory damages.²⁵ Because the Defendants were not jointly and severally liable, each would only be responsible for that portion of the compensatory damages award allocated to it.²⁶ Correctly calculated, AMC’s ratio of punitive damages to compensatory damages for purposes of the constitutional review is 11.5:1 ($22,500,000 in punitive damages to $1,950,000 in compensatory damages).

In determining whether a ratio of 11.5:1 is unconstitutionally excessive in this cáse, we must review the substantiality 'of the compensatory damages award. The Supreme Court has defined different standards for punitive awards depending on whether they are combined with substantial or insubstantial compensatory damages. When compensatory damages are low but the degree of reprehensibility high, double digit ratios, such as 10:1; might “comport with due process.” State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (citing Gore, 517 U.S. at 582, 116 S.Ct. 1589). Such a situation could exist if, for example, a defendant' fired.a gun into a crowd but did not hit anyone. But “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps onl/y equal to compensatory damages, can reach the outermost limit of -the due process guarantee.” Id. (emphasis added). That is, where compensatory damages are already substantial, á ratio of 1:1 may be-the most the Constitution-will permit.

■ Because the Supreme Coürt has not defined “substantial”'for purposes of compensatory damages,'we. must1-glean its meaning from application. Jn State Farm, for example, the Supreme.Court-held that a compensatory ¡ damages award of $1,000,000 for a year and a half of emotional. distress was “substantial.” And in cases decided, since State Farm, compensatory damages have often been considered “substantial” when they are over $1,000,000. The Eighth Circuit recently observed that between 1996 (when thé 'Süpremé Court decided Gore) and 2012,' the circuit had “reviewed an award of punitive damages exceeding $1 million with a ratio to compensatory damages greater than 1:1” on only three occasions. Ondrisek v. Hoffman, 698 F.3d 1020, 1029-30 (8th Cir.2012). And in each of those instances, the Eighth Circuit concluded the compensatory damages were substantial and the punitive award should be reduced after a Gore analysis, /d²⁷-But in many cases, compensatory. damages less than $1,000,000 have also been considered substantial.²⁸ In Jones, for example, a panel of this court reduced a punitive damages award of $2,000,000 to a 1:1 ratio with the “substantial” compensatory damages of $630,307. Jones, 674 F.3d at 1195,1208.

Here; Ms. Lompe received compensatory damages totaling $2,700,000, of which $1,950,000 was assessed against AMC. And the compensatory ■ damages included $950,000 for “emotional distress (past and future),” a component of compensatory damages the Supreme Court has noted may be redundant of punitive damages. State Farm, 538 U.S. 408, 426, 123 S.Ct. 1513 (2003) (quoting Restatement (Second) of Torts § 908, Comment c, at 466 (1977) (“In many cases in which compensatory damages include an amount for emotional distress, such as humiliation or indignation aroused by the defendant’s act, there is no clear line of demarcation between punishment and compensation and a verdict for a specified amount frequently includes elements of both.”)). In light of the nature of the injuries actually suffered by Ms. Lompe, the award of compensatory damages is substantial.²⁹ It also exceeds or is consistent with the amounts of compensatory damages that have been found to be substantial by many other courts. Therefore the 11.5:1 ratio between the punitive award against AMC and its portion of these substantial compensatoiy damages is constitutionally suspect. State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (stating that perhaps a ratio of 1:1, where compensatory damages are substantial, “can reach the outermost limit of the due process guarantee”).

c. Penalties in comparable cases

Under the third guidepost, we must evaluate “the disparity between the punitive damages award and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 428, 123 S.Ct. 1513 (internal quotation marks omitted).³⁰ “The fundamental question is whether [Defendant] had reasonable notice that. [its conduct] could result in such a large punitive award.” Cont’l Trend Res., Inc. v. OXY USA Inc., 101 F.3d 634, 641 (10th Cir.1996).

Looking first to comparable civil penalties, we acknowledge that violations of common law tort duties often “do not lend themselves to a comparison with statutory penalties.” Id. This comparison is particularly challenging here because Wyoming law does not regulate the inspection or replacement of furnaces, nor does it require property owners to provide CO detectors. But Wyoming law does impose some obligations on the owner of a residential building: “To protect the physical health and safety of the renter, each owner [in Wyoming] shall: ... (iii) Maintain electrical systems, plumbing, heating and hot and cold water.” Wyo. Stat. Ann. § 1-21-1203(a) (emphasis added). If the owner fails to do so, the renter may “[u]pon a showing of an unreasonable refusal to correct or the failure to use due diligence to correct a condition____ be awarded costs, damages and affirmative relief,” including judicial termination of the rental agreement. Id. § l-21-1206(c). But the Wyoming statute further provides “[t]he owner is not liable under this article for claims for mental suffering or anguish.” Id. § 1-21-1203(e). Accordingly, Wyoming does not provide for civil penalties that would have put AMC on notice that failure to maintain the furnaces could subject it to punitive damages of the magnitude awarded by the jury here.³¹

AMC notes that at least one state requires landlords to provide CO detectors but imposes penalties of no more than $10,000 for failure-to do so. See, e.g., Vt. Stat. Ann. tit. 20, §§ 2729(d), 2734(a). And we have located other state statutes that require carbon monoxide monitors in residential units and impose moderate fines or, in some cases, misdemeanor criminal liability for noncompliance.³² Nevertheless, these statutes are not helpful to our'analysis because they relate to regulations regarding CO detectors, rather than to the replacement or maintenance of furnaces, which was the basis of liability here.³³ Cf. CGB Occupational Therapy, Inc. v. RHA Health Servs., Inc., 499 F.3d 184, 189-90 (3d Cir.2007) (finding third guidepost “unhelpful” and “not instructive” for common-law claims and noting “our discussion is confined to the first two guideposts”). We turn next to comparable cases.

We have not located any decisions in Wyoming, or elsewhere throughout the Tenth Circuit, in which a large punitive damages award was entered in a personal injury action based on CO poisoning.³⁴ But other state courts confronting similar cases have imposed much smaller punitive damages awards than the $22,500,000 awarded against AMC here. For example, in Sears, Roebuck & Co. v. Harris, 630 So.2d 1018, 1034-35 (Ala.1993), the punitive damages award of $2,500,000 was one-tenth the size of the award here, despite the fact that one child was killed and three other people were injured by exposure to carbon monoxide.³⁵ See also Killough v. Jahandarfard, 578 So.2d 1041, 1046-47 (Ala.1991) (affirming a $2.5 million punitive damages verdict against a landlord where a child died of CO inhalation during a fire); Kilmer v. Browning, 806 S.W.2d 75, 78, 80 (Mo.Ct.App.1991) (affirming $300,000 in damages for wrongful death caused by CO exposure).

Thus, although our analysis of the third guidepost has not produced particularly robust comparisons, on the whole it réih-forces our assessment that the $22,500,000 punitive damages award here was excessive because AMC was not on fair notice that it could be held to- an award of $22,500,000 as a civil fine in the form of punitive damages. ‘ -.

In summary, we hold that the punitive damages award against AMC is unconstitutionally excessive. We reach this conclusion after exacting de novo review of the degree of AMC’s reprehensibility, a comparison of the amount of general damages to the amount of punitive damages, and the review of the civil penalties awarded in «imparable cases. Our next task, therefore, is íó determine the proper punitive damages award in this case.'

d. The amount of punitive damages ;. ¹ appropriate here-

Because we have concluded that the amount of the compensatory damages awarded to Ms.' Lompe is substantial, an award of punitive damages equal to the compensatory award — $1,950,000—may represent the outermost limit of the due process guarantee. Indeed, since the Supreme Court’s decision in State Farm, many federal 'appellate' courts have imposed a 1:1 ratio where, as here, the compensatory damages exceed $1 million. See, e.g., Morgan v. New York Life Ins. Co., 559 F.3d 425, 443 (6th Cir.2009) (vacating excessive punitive damages award in' age discrimination case where the compensatory award was $6 million and remanding with instructions for district court to enter an amount of punitive damages not to exceed a 1:1 ratio); Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 603 (8th Cir.2005) (reducing punitive-damages award to “a ratio of approximately- 1:1” where compensatory award was over $4 million and there was no evidence that the defendant intended to victimize the deceased).³⁶

When, courts have deviated upwards from a 1:1 ratio, the déferidant has either intended to cause the substantial compensatory damages or engaged in particularly egregious behavior.'- See, e.g., Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 146, 167 (2d Cir.2014) (holding that a remittitur to an approximate 2:1 ratio would be constitutional where defendants- subjected the plaintiff to “an extraordinary-and steadily intensifying drumbeat of racial 'insults, intimidation, and degradation over a period of more than three years”); Lee ex rel. Lee v. Borders, 764 F.3d 966, 976 (8th Cir.2014) (upholding a 3:1 ratio between punitive and compensatory damages where employee at facility for individuals with developmental disabilities intentionally harmed patient at facility by raping her, thereby abusing a position of trust); Ondrisek, 698 F.3d at 1029-31 (reducing a 10:1 ratio to 4:1 in a case involving “extreme reprehensibility,” where the defendant cult leader repeatedly- and brutally battered- minors, despite having been previously found liable of beating children under similar circumstances); Gibson v. Moskowitz, 523 F.3d 657, 664-65 (6th Cir.2008) (upholding a 2:1 ratio where mentally ill inmate died of dehydration after defendant doctor prescribed medication he knew caused “thermoregulation problems,” left the inmate confined over the weekend in an observation room that eventually reached 96 degrees, and ignored nurse’s warnings that the inmate .was dangerously dehydrated). •

In Jones, this court reduced the punitive damages to an amount equal to compensatory damages .after- considering the Gore factors as applied to the unique facts of that case. See Jones, 674 F.3d at 1208. There, the plaintiff brought a retaliatory discharge claim against the United Parcel Service (UPS), and the jury awarded the plaintiff $630,307 in compensatory damages and $2 million in punitive damages. On appeal, the Jones panel held the punitive damages award violated due process, despite the fact that the defendant’s “conduct was both wilful and improper.” Id. at 1207. In reaching that conclusion, the court was “persuaded primarily by the fact that [defendant’s] conduct resulted solely in economic injury to Jones and that [defendant] did not act with disregard for the health and safety of others.” Id. The panel also determined that the compensatory damages award was substantial in light of the plaintiffs injuries. Id. at 1208. Finally, the Jones panel reviewed comparable cases reducing punitive damages as excessive where the compensatory award was substantial. Id. We ultimately held in Jones that “a punitive damage award equal to the compensatory damage award is the maximum constitutionally allowable award under these particular facts.” Id.

■ Here, application of the Gore factors also calls for a 1:1 ratio of punitive damages to compensatory damages. To begin, we consider the first and most significant Gore factor — reprehensibility. State Farm, 538 U.S. at 419, 123 S.Ct. 1513 (“The most important indicium of the reasonableness of a punitive damage award is the degree of reprehensibility of the defendant’s conduct.” (alteration and internal quotation marks omitted)). As previously discussed, AMC’s conduct caused Ms. Lompe physical harm and resulted from AMC’s “indifference to or ... reckless disregard of the health or safety of others,” which it exhibited on several occasions. Id. But although we have concluded the evidence is sufficient to support the jury’s finding that AMC’s inaction was willful and wanton, thereby supporting an award of punitive damages, this finding by the jury required only that AMC’s inattention or inadvertence fall just above gross negligence in its indifference or reckless disregard for the safety of AMC’s tenants.³⁷ There was no evidence that AMC intended to cause harm to Ms. Lompe or to any other person, or that its conduct was “the result of intentional malice, trickery, or deceit.” Id. And the Supreme Court has instructed that the risk of harm to nonparties is relevant to reprehensibility but cannot be used as a basis to punish the defendant. See Philip Morris, 549 U.S. at 354, 127 S.Ct. 1057 (“[T]o permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation”).

Next, the jury awarded Ms. Lompe sub* stantial compensatory damages that include almost $1 million for her emotional distress. See State Farm, 538 U.S. at 426, 123 S.Ct. 1513 (stating that compensatory damages which included amounts for emotional distress “likely were based on a component which was duplicated in the' punitive award”). Finally, our review of “civil penalties authorized or imposed in comparable cases,” id. at 428, 123 S.Ct. 1513 (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589), reinforces our conclusion that a 1:1 ratio under the facts of this case represents the appropriate limit of due process.

A ratio of 1:1 under the present facts ensures that, the punishment imposed on AMC is “reasonable and proportionate” to the harm Ms. Lompe suffered, in light of the general damages she recovered. Id. at 426, 123 S.Ct. 1513. And a higher amount of punitive damages,- -under the circumstances of this, case, would be “greater than reasonably necessary to punish and deter.” Haslip, 499 U.S. at 22, 111 S.Ct. 1032. Because a 1:1 ratio of punitive damages to compensatory damages here satisfies “the State’s legitimate objectives” of punishing and deterring future misconduct, we may go, “no further.” State Farm, 538 U.S. at 419-20, 123 S.Ct. 1513.³⁸ Accordingly, we reduce th,e award of punitive damages against AMC from $22,500,000 to $1,950,000, reflecting a reduction from a ratio of 11.5:1 to a 1:1 ratio of punitive damages to. AMC’s $1,950,000 share of the compensatory damages award (65% of $3,000,000).³⁹

Y. CONCLUSION

We REVERSE IN PART and AFFIRM IN PART’ the-district court’s denial of Defendants’ post-trial motion for JMOL, new trial, or remittitur! We REVERSE the district court’s denial of Defendants’' motion for JMOL on the question of submitting punitive damages to the jury as to Sunridge- but AFFIRM as to AMC; We AFFIRM the district court’s denial of Defendants’ motion as to the jury instructions because the district court adequately instructed the jury as to the standard for punitive damages under Wyoming law, and we hold that Defendants waived their common law excessiven'ess objection to the amount of the punitive damages award. Finally, we REVERSE the award of punitive damages- against AMC in the amount of $22,500,000, an 11.5:1 ratio to AMC’s share of the compensatory damages award, and reduce it to $1,950,000, reflecting a 1:1 ratio to compensatory damages to comport with constitutional due' process under the Fourteenth Amendment.

1 . Mr. Bob Ctvrtlik testified on behalf of Sun-ridge at trial.

2 . These figures showed AMC’s income for its operations in all states, not just Wyoming. The district court overruled Defendants’ objection to including all of AMC’s income instead of only Wyoming income.

3 . • That is, the court compared the full amount of punitive damages awarded collectively ($25,500,000) against the. entire compensatory damages award ($3,000,000), without reducing the latter to reflect Ms. Lompe’s own share of the fault (10%, or $300,000).

4 . Defendants moved for leave to supplement the record on appeal to include additional financial documents and trial documents regarding their response to discovery requests. Ms. Lompe opposed and moved to strike references in Defendants' Reply brief citing to their proposed Supplemental Appendix. We deny the motion to supplement and the request to strike as moot because in reversing as to Sunridge and significantly reducing AMC’s punitive damages, we have not considered any materials in the proposed Supplemental Appendix or any information or argument from the Reply brief relying on such materials or information. Accordingly, the proposed supplemental material is irrelevant and its absence does not prejudice Defendants.

5 . Wyoming law is unclear concerning whether such an assignment of duties is permissible. Indeed, the parties disputed at trial the meaning of section 1 — 21—1202(d) of the Wyoming Residential Rental Property Code, which states “[a]ny duty or obligation in this article- may be assigned to a different party or modified by explicit written agreement signed by the parties.” Wyo. Stat. Ann. § 1 — 21— 1202(d). Defendants argued this allowed Sunridge to assign all of its duties as a property owner to AMC, whereas Ms. Lompe argued Sunridge, could only do so if expressly agreed to by the tenants themselves. The district court ruled that ''[t]he statute applies to assignments between landlords and tenants. It does not govern any assignment between landlords and property managers.” Lompe v. Sunridge Partners, LLC, 54 F.Supp.3d 1252, 1260 (D.Wyo.2014) (citing Arthur R. Gatidio, Wyoming's Residential Rental Property Act — A Critical Review, 35 Land & Water L.Rev. 455, 478 (2000)). Even assuming the district court’s reading is a correct prediction of how the Wyoming Supreme Court will interpret the statute, a good faith misinterpretation of the meaning of section 1202(d) does not demonstrate willful and wanton misconduct.

6 .• The jury found Sunridge had indeed breached its duty of care as owner of the property to Ms. Lompe as a tenant and that this breach of duty proximátely caused her injury. In turn, the compensatory damages award is the jury’s determination of the amount that will make Ms. Lompe whole for Sunridge’s breach of its duty of care. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513 (2003) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589 (1996)); accord Sinclair Oil Corp. v. Columbia Cas. Co., 682 P.2d 975, 978 (Wyo.1984) (“Punitive damages are not allowed to compensate plaintiffs nor are they designed to be a windfall.’’). Defendants did not appeal the liability determination or the amount of compensatory damages.

7 . Although the dissent is correct that Mr. Ctvrtlik expected to be told if a tenant had to be evacuated due to a carbon monoxide leak, ■he’further testified that, in fact, he was not told.

8 . Nor are we convinced that testimony about what Sunridge may have learned after Ms. Lompe’s exposure is relevant to whether it éngaged' in willful ■ and wanton misconduct prior to that event.

9 . Ms. Lompe contends Defendants waived this argument. We disagree. In their motion ■for JMOL, Defendants argued Ms.' Lompe’s presentation of their financial condition was misleading and- therefore punitive damages were improper. Although the district court ‘ did not expressly rule on this issue, we are satisfied that Defendants adequately presented it to the district court. See Covey v. Assessor of Ohio Cty., 777 F.3d 186, 195 (4th Cir.2015) (reviewing an issue the district court did not rule on because "the argument was raised below and is therefore properly before the Court.”).

10 . In fact, Rosty noted that the plaintiff had presented no evidence of the defendant's net worth or of financial condition at the time the judgment was entered and explained that the Wyoming Supreme Court had "not addressed the issue” of whether evidence of wealth or financial condition must be as of the time of judgment, acknowledging, however, that "other jurisdictions have held that a defendant’s wealth is appropriately measured 'at the time of entry of the judgment, in recognition that .that is the time that the wrongdoer must feel the sting of an appropriately sized punitive damage penalty.’ ” Rosty v. Skaj, 272 P.3d 947, 959 & n. 2 (Wyo.2012) (quoting Tan v. Bob Ciasulli’s Mack Auto Mall, Inc., 194 N.J. 212, 943 A.2d 866, 871 (2008)). But this contemplation in dicta related to the .timeframe of the evidence of wealth or financial condition and not to what the specific measure should be.

11 . The Wyoming Supreme Court has also explained that although the ultimate purpose of punitive damages is punishment and deterrence, "[t]he punitive allowance should be in an amount that would promote.the public . interest without financially annihilating the defendants. Wrongdoers may be punished without being destroyed.” Town of Jackson v. Shaw, 569 P.2d 1246, 1253 (Wyo.1977). However, Shaw did not hold that if a jury awards punitive damages that will financially ruin the defendant, the district court should grant JMOL on the punitive damages issue. Instead, Shaw held that the excessive award in that case should be reduced.

12 . Proposed instruction 12 states: "The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Cramer v. Powder River Coal, LLC, 204 P.3d 974, 979 (Wyo.2009) (internal quotation marks omitted). But the district court rejected Defendants’ proposed instruction 12, and thus the jury was not instructed on this particular "intent to do harm” language from Cramer. The district court referred to Dancu-lovich to explain its rejection of the instruction, stating “[wjillful and wanton misconduct requires intent rather than inadvertence, not an intent to cause an injury but to do the act without regard to consequences, reckless.” Juty Instruction No. 42 conveyed this principle to the jury.

13 . Nevertheless, the dissent "assumes” the jury found AMC acted with "intent to do harm” Or "evil intent” based on language from Cramer. Dissent at 1079-80; 1081-82. In particular, the dissent explains that "[b]e-cause the jury found willful and wanton misconduct, the jury must have regarded AMC’s misconduct as ‘something in the nature of special ill-will' that constituted- ‘oppression, fraud, or malice.'” Id. at 1082 (quoting Farmers Ins. Exch. v. Shirley, 958 P.2d 1040, 1051 (Wyo.1998)). But the district coúrt did not instruct the jury using language' from Shirley, and we here reject AMC’s argument that a new trial should be granted based on the failure to include the Cramer/Shirley "special ill-will” or "evil intent” language in the jury instructions.

14 . The Supreme Court noted the ,limited role of this deference in the context of the constitutional review of a punitive damage award, stating f

[o]nly with respect to the first Gore inquiry do the district courts have a somewhat superior vantage over courts of appeals, and even then the advantage exists primarily with respect to issues turning on witness credibility and demeanor. Trial courts and appellate courts seem equally capable of analyzing the second factor. And the third Gore criterion, which calls for a broad legal comparison, seems more suited to the expertise of appellate courts.

Cooper Indus., 532 U.S. at 440, 121 S.Ct. 1678 . (addressing the relative institutional competence of district, and appellate courts with respect to assessing the constitutionality of punitive damages awards).

15 . We agree with the dissent that the jury’s finding that AMC’s conduct was willful and wanton — thereby supporting an award of punitive damages — includes an implicit finding that AMC’s conduct was reprehensible. Dissent at Í081-82. But we separately assess the degree of AMC’s reprehensibility in reviewing the constitutionality of the jury’s punitive damages award.

16 . The dissent suggests that either the district court or. this panel can infer ■ that the jury considered AMC’s behavior particularly outrageous, egregious, or reprehensible based on the size of the punitive damages awarded. ’■ We respectfully disagree. To do -So 'would confuse the deference afforded under common law with the strict de novo review applicable to a due process challenge. Indeed, it is difficult to imagine a situation in which the punitive damages award could be held unconstitutional if the size of the award itself is treated as a "finding” on repreíiensibility to which deference is owed.

17 . The district court includes in its analysis a recitation of facts the jury could have found based on the evidence presented. Lompe v. Sunridge Partners, LLC, 54 F.Supp.3d 1252, 1268 (D.Wyo.2014). These1 statements are not findings of fact by the district court, and we do not treat them as such.

18 .The 'dissent is correct that we have not ¹ concluded the district 'court’s findings are clearly erroneous, and that "[t]hese four findings reflect reprehensible conduct by AMC.” Dissent at, 1082. But the dissent relies on other facts the district court allegedly "found,” referring to facts the jury could have found or to evidence offered. For example, the dissent indicates "the district court stated that after the apartment manager was poisoned, the local gas utility had told AMC that the furnaces should be inspected.” Dissent at 1084. But the portion of the, district court’s opinion cited by the dissent is a discussion of evidentiary objections. Indeed, the district court concludes the testimony on this point was not hearsay because it was not offered for the truth of the matter asserted. Lompe, 54 F,Supp.3d at 1257; Even assuming, however, that this could be a finding by the district court, it is not inconsistent with our assessment that AMC’s failure to act was iri reckless disregard of the consequences, and under such circumstances and conditions that a reasonable person would know, or have reason to know, that such conduct would, with a high degree of probability, result in harm to another. In other words, we agree with the dissent that AMC’s conduct was reprehensible based on this willful and wanton misconduct standard. Where we and the dissent disagree is on the degree of- reprehensibility under the constitutional analysis.

19 . As,the dissent notes, '‘[t]oday, courts routinely rank the degree of the defendant’s reprehensibility on a wide spectrum that runs from very little reprehensibility, through modest or intermediate reprehensibility) and up to substantial or extreme reprehensibility.” Dissent at 1080 (quoting Laura- J. Hines & N. William Hines, Constitutional Constraints on Punitive Damages: Clarity, Consistency, & the Outlier Dilemma, 66 Hastings L.J. 1257, 1303 (2015)). Our analysis takes full- account of the existence of such a spectrum.

20 . 'We providé more detail on the evidence concerning Ms. Lompe’s injuries in footnote ■29 below.

21 . Our independent assessment of. the evidence relevant to the Gore guideposts, is consistent with the strict de novo review required by the Supreme Court, See Jones, 674 F.3d at 1207 (assessing the reprehensibility of the defendant by assessing the evidence under the Gore factors and reversing the district court's decision upholding the punitive damages award). Indeed the de novo consideration at the appellate level of the facts relevant to the reprehensibility-of the defendant was a source of disagreement among the Court. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 443, 121 S.Ct. 1678 (2001) (Scalia, J., concurring) ("I was of the view that we should review for abuse of discretion (rather than de novo) fact-bound constitutional issues ... but the Court held otherwise.”). But even if we ignore this evidence, there is nothing in the record to , suggest that AMC intended to harm Ms, Lompe or any other tenant.

22 . We use the phrase “particularly reprehensible” because this is the nomenclature adopted by the Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996).

23 . The dissent, notes , that "faced with this same evidence, the jury regarded AMC’s misconduct as willful and wanton.” Dissent at 1083. We agree and accordingly have affirmed the jury’s determination that punitive damages were justified under Wyoming’s willful and wanton standard. That means, as the jury was instructed, that AMC’s conduct must have bpen “in recldess disregard of the consequences, and under such circumstances and conditions ‘that a reasonable person would know, or have reason to know, that such conduct would, with a high degree of probability, result in harm to another.”-

24 . Indeed, Justice Scalia observed that "the punitive damages jurisprudence which has sprung forth'from BMW v. Gore is insusceptible of principled application.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429, 123 S.Ct. 1513 (2003) (Scalia, J., dissenting). Although we have endeavored to follow the Supreme Court’s guidance, we do not suggest there is any ready template for conducting the constitutional analysis required under Gore, as confirmed here by the dissent’s well-reasoned and competing Gore analysis.

25 . On its general verdict form, the jury apportioned fault for the negligence resulting in Ms. Lompe’s injury 25% to Sunridge and 65% to AMC.

26 , ■ At least two federal circuits have ruled that calculating the punitive-to-compensatory ratio by using the full compensatory award when a defendant is only liable for a portion of the damages is improper. Clark v. Chrysler Corp., 436 F.3d 594, 606 n. 16 (6th Cir.2006) (‘‘[A] ratio based on the full compensatory award would improperly punish [Defendants] for conduct that the jury determined tó be the fault of the plaintiff.”); Grabinski v. Blue Springs Ford Sales, Inc., 203 F.3d 1024, 1026 (8th Cir.2000) ("[D]ivid[ing] each individual punitive damages award by the entire actual damages award” rather than by that portion of the compensatory damages award allocated to each Defendant, "assumes an impossibility ... because it posits that each defendant will ultimately pay the full compensatory damages award.”).

27 . The dissent correctly notes that in Ondrisek v. Hoffman, 698 F.3d 1020, 1029-30 (8th Cir.2012), the Eighth Circuit ultimately approved a ratio of 4:1 based on its application of the Gore factors. See id. at 1029 (concluding that the defendant’s conduct, which included severe beatings of minors, was extremely reprehensible where defendant had previously been found liable for the same type-of conduct against other minors). We refer to Ondrisek as support for our conclusion that the compensatory damage award here is substantial. And that conclusion does not end our inquiry into whether the punitive damages award here is constitutional. We address the Gore guideposts together in Section IV(D)(2)(d) be- • low.

28 . AMC and the Chamber of Commerce, in its amicus brief, both collect a number of such . decisions. Aplt. Br. 50 n. 22; Chamber Br. 1.9 n. 5, In. response, Ms. Lompe lists cases affirming ratios of 10:1 or more. Resp. Br. 51+54, We consider some of these decisions in greater detail below...' But the disparity in holdings indicates that the maximum of punitive'-damages that comports with due process is highly dependent upon the relévant facts.

29 . Ms. Lompe was discharged from the hospital the same day she.was admitted, resumed living at the Sunridge Apartments, and her own expert was equivocal about whether she was disabled as a result of the exposure. At the time of trial, Ms. Lompe was working as a receptionist at wages comparable to those she earned before the incident. She also continued to referee and play basketball and to sing and travel with a choir. Although Ms. Lompe's expert opined that her goal of obtaining a Ph.D, was likely foreclosed, the record included evidence that her declining academic performance pre-dat-ed her CO exposure.

30 . The dissent argues this guidepost is ■ inapplicable here because of the weakness of the available comparisons. Dissent 1088-90. Alternatively considering this guidepost for the sake of argument, the dissent assumes' it supports a substantial reduction in the assessment of punitive damages, but just not to a ratio of 1:1. Id. at 1088. Although the lack of robust comparisons renders this guidepost less helpful in the overall analysis, we include what information is available to comport with the Supreme Court’s direction and we ultimately reach a conclusion on the limits of due process different than the dissent.

31 . In this circuit, Colorado, Kansas, New Mexico, Oklahoma, and Utah also have statutes requiring the maintenance of residential heating systems. See Col.Rev.Stat. Ann, § 38—12—505(1)(d) (providing that a residential property is uninhabitable if it “substantially lacks ,.. [functioning heating facilities that conformed to applicable law at the time of installation and that are maintained in good working order”); Kan. Stat. Ann. § 58-2553(a)(3) (requiring landlord to "maintain in good and safe working order and condition all ... heating ... appliances”); N.M. Stat. Ann. § 47-8-20(A)(4) (requiring owner to "maintain in good and safe working order and condition ... heating”); Okla. Stat. Ann. tit. 41, § 118(A)(3) (providing that landlord shall "[mjaintain in 'good and safe working order and condition all f.. heating ... facilities and appliances”); Utah Code Ann. § 57-22—4(1)(b)(ii) ("To protect the physical health and safety of the ordinary renter, an owner •... shall ... maintain ... heating”).

But none of these statutes imposes civil fines or criminal liability. See Col.Rev.Stat. Ann. § 38-12-507 (providing that tenant can obtain injunctive relief, "actual damages,” and under certain conditions may terminate the lease agreement if- the landlord breaches the warranty of habitability); Kan. Stat. Ann. § 58-2559(a)-(b) (providing that tenant may terminate the lease agreement and "recover damages and obtain injunctive relief"); N.M. Stat. Ann. § 47-8-27.1(A)(1), (B) (providing that "if a reasonable attempt to remedy [a] breach is not made” after written notice "the rental agreement shall terminate as provided in the notice” and the renter "may also recover damages and obtain injunctive relief for any material noncompliance by the owner”); Okla. Stat, Ann. tit. 41, § 121(A) — (D) (providing that tenant may, upon notice and failure of the landlord to remedy, terminate the rental agreement or “[r]ecover damages based upon the diminution of the fair rental value of the dwelling unit”); Utah Code Ann. .§ 57-22-6(2), (5)(c)(ii) (providing that upon written notice of defect and failure to correct, renter may terminate the rental agreement and recover damages in court). And Utah, like Wyoming, excludes the recovery of damages for pain and suffering. See Utah Code Ann. § 57-22-6(6) (“An owner may not be held liable under this chapter for a claim for mental suffering or anguish.”). See also Col.Rev. Stat. Ann. § 38-12-507(b) (limiting tenant to "actual damages” for breach of -warranty of habitability).

32 . See, e.g., Cal. Health & Safety Code § 17926(c)(1) (imposing "a maximum fine of two hundred dollars ($200) for each offense”); 430 111. Comp. Stat. Ann. 135/15(a) . (“willful failure to install or maintain in operating condition any [CO] alarm ... is a Class B misdemeanor”); 730 Ill. Comp. Stat. Ann, 5/5-4.5-60(e) (imposing criminal misdemean- or liability subject to a fine "not to exceed $1,500 for each offense”); Me.Rev.Stat. Ann. tit. 25, § 2468(8) (imposing fine of "not more than $500 for each violation”); NJ. Stat. Ann. § 52;27D-198.19(c) (imposing penalty of "not more than $1,000 for a first offense and not more than $2,500 for each subsequent offense”); Or.Rev.Sfat. Ann. § 105.840 (owner may be liable for "the greater of actual damages or $250 pjer residential unit”); 35 Pa. Stat. and Const. Ann. § 7226 (imposing fine of "up to $50”); Tenn.Code Ann. § 68-120-112(a)(2), (e)(1) (amendment effective January 1, 2016 adding carbon monoxide detectors to this provision's treatment of smoke detectors and making a- violation á Class C misdemeanor); id. § 40-35-111(e)(3) (Class C misdemeanor punishable by imprisonment of "not greater than thirty (30) days or a fine not to exceed fifty' dollars ($50.00), or both”); W. Va.Code Ann. § 29-3-16a(f), (k) (imposing criminal misdemeanor and a fine of $250 for first offense, $750 for second- offense, and $2000 for third and subsequent offenses). But see Col.Rév.Stat. Ann, §§ 38-45-103, 104 (requiring landlord to provide and maintain carbon monoxide detectors but not including any specified fine or¹ damages); Utah Code Ann. § 10-8-53.5 (providing that any local carbon monoxide detector requirements applicable to residential units may be enforced only against the occupant/tenant, subject to exceptions for carbon monoxide detectors in new home construction).

33 .Moreover, the Supreme Court has instructed that under this Gore guidepost, we examine the "disparity between the punitive damages award and the ‘civil penalties authorized or imposed in comparable cases.’ ” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 428, 123 S.Ct. 1513 (2003) (emphasis added) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589 (1996)), Indeed, the Supreme Court has cautioned against the reliance on criminal penalties to support an award of punitive damages:

Great care must be taken to avoid use of the civil process to assess criminal penalties that can be imposed only after the heightened protections of a criminal trial have been observed, including, of course, its higher standards of proof. Punitive damages are not a substitute for the criminal process, and the remote possibility of a criminal sanction does not automatically sustain a punitive damages'award.

Id.

34 . Ms. Lompe refers us to Williams v. Vail Resorts Dev. Co., No. 2:02-cv-00016 (D.Wyo. Dec. 16, 2003), in which a jury awarded approximately $17.5 million in compensatory damáges for personal injury and wrongful death resulting from CO poisoning. But that jury found plaintiffs had failed to show willful and wanton misconduct and therefore denied punitive damages.

35 . Even combining the $4,000,000 the Sears . jury awarded for wrongful death, which Alabama uniquely considers punitive rather than compensatory damages, with the $2,500,000 in punitive damages awarded to the survivors collectively, the total is only one-third of the $22,500,00,0 awarded to Ms. Lompe here under far ¡less egregious circumstances than in Sears. See McKowan v. Bentley, 773 So.2d 990, 1000 (Ala.1999) (Houston, J., concurring) (conceding Alabama legislature, through its tort reform 'actions, “appears to have put its .imprimatur” on long-standing Alabama Supreme Court interpretation that wrongful death statute only permits recovery of punitive damages); see also Susan Randall, Only in Alabama: A Modest Tort Agenda, 60 Ala. L.Rev. 977, 981-986 (2009) (explaining the history, extending to 1877, of the Alabama Supreme Court’s interpretation of the wrong■ful death statute). But despite this disparity in the total amount of the awards, the dissent contends the ratio of punitive damages to compensatory damages is much greater in Sears than a ratio of 1:1.: This observation does not undermine our analysis under the third Gore guidepost because the Supreme Court does not instruct us to compare ratios at this point in the analysis, but rather ‘‘civil penalties authorized or imposed in comparable cases.” See State Farm, 538 U.S. at 428, 123 S.Ct. 1513 (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589). The inquiry here is whether the imposition of civil fines against defendants in comparable cases put AMC on-notice that it could be liable for the civil penalty imposed through the punitive- damages award. And Sears was decided before the Supreme Court explained the significance of . the ratio between punitive damages and compensatory damages in Gore.

36 . Other-federal circuits have reached similar results in decisions that -are unpublished. ■ See, e.g., Dawe v. Con., USA, 506 Fed.Appx. 657, 660 (9th Cir.2013) (unpublished) (affirming district court’s reduction of punitive damages award to a 1:1 ratio where the compensatory award was over $2.5 million); Jurinko v. Med. Protective Co., 305 Fed.Appx. 13, 28, 30 (3d Cir.2008) (unpublished) (reducing punitive damages award to a 1:1 ratio where compensatory award was over $1.6* million).

37 . The Wyoming Supreme Court has held that "[plunitive damages are not appropriate in circumstances involving inattention, inadvertence, thoughtlessness, mistake, or even gross negligence.” Weaver v. Mitchell, 715 P.2d 1361, 1370 (Wyo.1986) (citing Danculovich v. Brown, 593 P.2d 187, 191 (Wyo.1979)).

38 . After reviewing the nineteen cases cited by the dissent in its Appendix, we remain unpersuaded that a ratio exceeding 1:1 is appropriate on the record before us in this case. Six of the dissent's cases ordered a remittitur to (or affirmed) either a 1:1 ratio or a ratio lower than 2:1 and accordingly reinforce our application of a 1:1 ratio here, See Jones v. United Parcel Serv., Inc., 674 F.3d 1187 (10th Cir.2012); Morgan v. New York Life Ins. Co., 559 F.3d 425 (6th Cir.2009); Bach v. First Union Nat’l Bank, 486 F.3d 150 (6th Cir.2007); Boemer v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir.2005); Pollard v. E.I. DuPont De Nemours, Inc., 412 F.3d 657 (6th Cir.2005); Williams v. ConAgra Poultry Co., 378 F.3d 790 (8th Cir.2004). Among the cases that apply a ratio appreciably greater than 1:1, many do not even consider, let alone apply, State Farm's instruction that ‘‘[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.’'’ 538 U.S. at 425, 123 S.Ct. 1513. See Brand Mktg. Grp. LLC, v. Intertek Testing Servs., N.A., 801 F.3d 347 (3d Cir.2015); Gibson v. Moskowitz, 523 F.3d 657 (6th Cir.2008); Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998 (9th Cir.2004); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir.2003). Other cases involved intentionally culpable behavior by the defendant or significantly greater actual damages to the .plaintiff and/or others. See Lee ex rel. Lee v. Borders, 764 F.3d 966 (8th Cir.2014); Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir.2014); Ondrisek v. Hoffman, 698 F.3d 1020 (8th Cir.2012); Gibson, 523 F.3d at 661; Action Marine, Inc. v. Cont’l Carbon Inc., 481 F.3d 1302 (11th Cir.2007); Stogsdill v. Healthmark Partners, LLC, 377 F.3d 827 (8th Cir.2004). In addition, some of the above cases can further be distinguished because the actual damages comparator was significantly less than the comparator here.

39 . Reversing punitive damages as to Sunridge and reducing AMC’s punitive damages from an 11.5:1 ratio to a 1:1 ratio effectively moots AMC’s arguments that the punitive damages award unconstitutionally punished nonparties and considered unrelated sources of income. Accordingly, we do not address those arguments.

1 . In holding that the evidence was sufficient for the jury to assess punitive damages against AMC, the majority relies in part on AMC's knowledge that the furnaces ' were nearly 30 years old and that each furnace had a useful life of only about 20 years. Maj. Op, at 1057. But this rationale applies to Sun-■rjidge as well as, AMC. Like AMC, Sunridge was alerted to the use of furnaces past their ■useful lives.