SEYMOUR, Circuit Judge.
Kelly O’Gilvie brought this diversity action, individually and on behalf of the estate of his deceased wife Betty, against International Playtex, Inc. O’Gilvie alleged that Betty's use of Playtex super-absorbent tampons caused her death from toxic shock syndrome, and he sought damages from Playtex under the Kansas law of strict liability in tort. In answers to special interrogatories, the jury found that Playtex tampons had caused Mrs. O’Gilvie to develop toxic shock syndrome, and that Playtex had failed to adequately warn of the fatal risk of toxic shock from the use of its product. The jury awarded actual damages of $1,525,000,1 and punitive damages of $10,000,000. After the entry of judgment and apparently in response to the trial court’s suggestion, Playtex represented that it was discontinuing the sale of [1441]*1441some of its products, instituting a program of alerting the public to the dangers of toxic shock syndrome, and modifying its product warning. The court thereupon ordered the punitive damage award reduced to $1,350,000.
Both parties have appealed. O’Gilvie contends that the court abused its discretion by reducing the amount of the punitive damages award. Playtex asserts: 1) it was entitled to a directed verdict because there was no evidence that the warning was inadequate or that it caused the injury; 2) the court erred in refusing to allow the jury to consider the fault of Betty O’Gilvie or the fault of other tampon manufacturers; and 3) the court erred in submitting the issue of punitive damages to the jury. We find no ground for disturbing the liability verdict against Playtex. We conclude, however, that the court’s order reducing the punitive damage award must be reversed.
I.
A review of the record reveals the following sequence of events. On Tuesday, March 29, 1983, Betty O’Gilvie attended hairdressing school all day. While there, she told a friend that she had had a sore throat and a vaginal yeast infection all weekend, and that she was going to call her doctor. Mrs. O’Gilvie’s husband testified that he first became aware she was not feeling well on Wednesday morning, March 30. She told him she thought she had a cold or the flu. Mrs. O’Gilvie’s sister, Cheryl Ballway, took Mrs. O’Gilvie to the office of her physician, Dr. Hays, the morning of March 30 for a 9:30 a.m. appointment. Although Ms. Ballway testified that Mrs. O’Gilvie said she was suffering from vomiting and diarrhea, the doctor testified that Mrs. O’Gilvie did not mention these symptoms to him. Mr. O’Gilvie testified that his wife did not have these symptoms at any time before she went to Dr. Hays.
When Mrs. O’Gilvie asked Dr. Hays about toxic shock syndrome, he assured her that she did not have it and diagnosed scarlet fever. Mrs. O’Gilvie’s temperature rose to 105° by Wednesday evening, and Mr. O’Gilvie testified that she had more or less lost consciousness. He called Dr. Hays at about 10 p.m., and Dr. Hays reassured him that the scarlet fever was running its course. The doctor instructed him to continue giving Mrs. O’Gilvie aspirin, fluids, and the prescribed medication. Mrs. O’Gilvie’s mother-in-law, who was caring for her, called Dr. Hays’ office at about 9 a.m. Thursday, March 81. She did not speak with Dr. Hays and was told by office personnel to continue the treatment. Mrs. O’Gilvie’s condition steadily deteriorated Thursday morning, and her mother-in-law called the office at 1:30 p.m. to report that Mrs. O’Gilvie’s fingers were turning blue. Shortly thereafter Mrs. O'Gilvie was brought to the office, emergency measures were begun, and she was rushed to the hospital. She died Saturday, April 2, of toxic shock syndrome.
II.
Playtex contends that it was entitled to a directed verdict because O’Gilvie presented no evidence that the warning accompanying its super-absorbent tampons was inadequate or that the warning was the cause of Mrs. O’Gilvie’s injury. We disagree. A directed verdict is not proper if the record, viewed most favorably to the party opposing the motion, contains evidence upon which a reasonable jury could return a verdict for the nonmoving party. See Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.1986); Mackey v. Burke, 751 F.2d 322, 325 (10th Cir.1984).
O’Gilvie argued at trial that the warning was inadequate because it did not properly apprise users of the causal connection between toxic shock and the use of tampons, or of the increased risk from the use of super-absorbent tampons.2 The record con[1442]*1442tains substantial expert testimony that a causal link exists between toxic shock and the use of super-absorbent tampons such as the Playtex product at issue here. Experts also testified that the warning did not alert buyers to the increased risk from use of high-absorbency tampons, and that simply mentioning an association between toxic shock and tampon use did not adequately alert users to the cause and effect relationship. Indeed, Playtex’ own expert, Dr. David Hall, testified that if Playtex tampons cause toxic shock, the Playtex package warning was inadequate. See rec., vol. 25, at 2690, 2721, 2723.
Playtex’ argument that there is no evidence of a causal connection between the inadequacy of the warning and the injury is also without merit. Under Kansas law, an inadequate warning creates a presumption of causation. See Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, 1057 (1984). This presumption, considered together with Kelly O’Gilvie’s testimony on the consideration his wife would have given an adequate warning, was sufficient to send the causation issue to the jury.
Playtex also argues that its warning was adequate as a matter of law because it complied with Food and Drug Administration (FDA) regulations. In the alternative Playtex contends that the court’s instruction on the effect of compliance with FDA requirements was erroneous. We are not presuaded by these arguments.
The district court instructed the jury as a matter of law that the Playtex package warning was in conformity with FDA regulations, and further instructed:
“If the warning on the product was, at the time of manufacture, in compliance with administrative regulatory safety standards relating to warnings or instructions, then such warning is evidence of due care, and the product shall be deemed not defective by reason of the warning or instructions, unless the plaintiff proves that a reasonably prudent manufacturer could and would have taken additional precautions.
“In other words, you are instructed that even if you find that defendant International Playtex met all government regulations and requirements, which are minimum standards, such compliance is not a defense if a reasonable and prudent manufacturer would have taken added precautions.”
Rec., vol. 1, at 129.
On appeal, Playtex contends that the court erred in this instruction by characterizing the FDA requirements as minimum standards. This argument fails on two grounds. Although the record bristles with objections by everyone to virtually everything on every conceivable ground, Playtex did not object to this instruction on [1443]*1443that ground. See, rec., vol. 29, at 3364-65. Moreover, the instruction is an accurate reflection of the law of Kansas. See Kan. StatAnn. § 60-3304 (1983); Jones v. Hittle Serv., Inc., 219 Kan. 627, 549 P.2d 1383 (1976).
We also reject Playtex’ argument that its compliance with PDA standards entitled it to judgment as a matter of law. Compliance is not dispositive under Kansas law if the plaintiff shows that a reasonable manufacturer would have done more. O’Gilvie presented ample evidence that mere compliance with the FDA standards was not adequate under the circumstances. The court therefore properly sent the issue to the jury.3
III.
Playtex contends that it is entitled to a new trial because the district court refused to allow the jury to consider the issue of the comparative fault of Betty O’Gilvie or of other tampon manufacturers.
A.
Playtex correctly points out that, under Kansas law, “all types of fault, regardless of degree, are to be compared with that of defendant whether the fault is characterized as contributory negligence, assumption of risk, product misuse, or unreasonable use. All of these defenses depend on the reasonableness of plaintiff’s conduct, a negligence concept.” Prince v. Leesona Corp., 720 F.2d 1166, 1171 (10th Cir.1983) (citing Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788, 796-97 (1980)). Playtex argues that Mrs. O’Gilvie’s fault should have been submitted to the jury because
“(1) She read and understood the warnings accompanying the Playtex tampons (Tr. 2511); (2) knowing this risk she chose to use tampons; (3) despite skepticism about Dr. Hays’s diagnosis (Tr. 2513), she did not seek a second medical opinion; (4) after developing the symptoms associated with TSS she continued to use tampons (Tr. 2513); and, (5) she did not return to her doctor or see another doctor although the symptoms persisted and worsened.”
Brief of Defendant-Appellee, Cross-Appellant at 22-23.
A plaintiff is contributorily negligent when his conduct is a contributing cause of the harm and falls short of that which a reasonable person would undertake for his own protection. See Allman v. Holleman, 233 Kan. 781, 667 P.2d 296, 300 (1983). The doctrine of assumption of the risk requires the defendant to “prove that the injured plaintiff (1) discovered the defect; (2) was aware of the danger; and (3) unreasonably continued to use the product.” Prince, 720 F.2d at 1169. “Both doctrines require some knowledge of the danger or risk.” Guerra v. Jaeger, 204 Kan. 309, 461 P.2d 737, 741 (1969). A defendant who seeks to reduce his percentage of fault by comparing it to the fault of another party has the burden of proving by a preponderance of the evidence that the party was at fault and that the fault caused or contributed to the injury. See Wooderson, 681 P.2d at 1058.
For purposes of assessing the evidence regarding Mrs. O’Gilvie’s comparative fault, we must look separately at her conduct before her first visit to Dr. Hays, and her conduct after that time. Mrs. O’Gilvie’s conduct after her initial visit to Dr. Hays could not give rise to a jury issue on her comparative fault because her continued use of tampons after the visit was not negligent as a matter of Kansas law. In Allman, the defendant claimed that the decedent had been contributorily negligent in taking birth control pills. The Kansas Supreme Court disagreed, pointing out that the decedent had taken the pills pursuant to a doctor’s prescription.
“This fact, along with the widespread disregard of warning labels on packages, [1444]*1444prohibits a finding of fault on the part of Ms. Allman. Even though there is a recognizable risk, conduct, to be negligent, must be unreasonable. Prosser, Law of Torts § 31 (4th ed. 1971). As we are becoming constantly more aware, nearly all human acts carry with them some degree of risk. When that risk is slight enough that it is commonly disregarded, however, the standard of ordinary care is not violated. Such is the case here with the taking of birth control pills.”
667 P.2d at 300. Similarly, Mrs. O’Gilvie continued her use of tampons after being reassured by her doctor that she did not have toxic shock. The rationale of Allman clearly precludes a finding that Mrs. O’Gil-vie’s disregard of the package warning under these circumstances was unreasonable.
Even Playtex does not argue that Mrs. O’Gilvie was at fault merely in using tampons. Rather, Playtex contends that her conduct was unreasonable because she failed to discontinue their use after she developed the symptoms of toxic shock syndrome, which she recognized, and because she did not seek a second medical opinion despite skepticism about Dr. Hays’ diagnosis. This is so, it says, because its warning told her to discontinue use and see a doctor if she got the described symptoms.
Mrs. O’Gilvie’s conduct in continuing to use tampons could be unreasonable only if the Playtex warning adequately advised her of the danger. See, e.g., Billiar v. Minnesota Mining & Mfg. Co., 623 F.2d 240, 245 (2d Cir.1980). Indeed, in its proposed jury instruction on Mrs. O’Gilvie’s comparative fault, Playtex stated:
“In regard to Betty O’Gilvie’s negligence, the defendants allege that if Betty O’Gilvie had toxic shock syndrome, she had knowledge of the risk of TSS with tampon use and chose to accept that risk, and that she continued to use tampons with knowledge of the warning contained in the package, and that such conduct contributed to cause any injury or damage she may have suffered. If you find that Mrs. O’Gilvie acted in such manner, you must find that she was negligent and at fault.”
Rec., vol. 1, at 52 (emphasis added). A defendant may not limit its liability by relying on a plaintiff's failure to heed an insufficient warning. See, e.g., Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1538-39 (D.C.Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984); Billiar, 623 F.2d at 245. In essence, the issue of the adequacy of the warning, .which went to the jury, resolves any issue of Mrs. O’Gilvie’s fault as well. See Billiar, 623 F.2d at 245-46. If the jury had decided that the warning was adequate, Playtex would not have been liable and Mrs. O’Gil-vie's fault in not following the warning would have been irrelevant. Instead, the jury decided the warning was inadequate, and this finding is dispositive of the comparative fault issue because failure to heed an inadequate warning is not unreasonable. Playtex’ argument on appeal that Mrs. O’Gilvie was at fault in disregarding a warning that did not properly apprise her of the very hazard to which she fell victim is simply without legal or logical support. See Ferebee, 736 F.2d at 1538-39; Billiar, 623 F.2d at 245; see generally 4 F. Harper, F. James, Jr. & O. Gray, The Law of Torts § 20.5, at 147-61, § 22.15, at 393-94 (1986).
B.
Nor do we agree with Playtex’ assertion that the trial court erred in failing to allow the jury to assess the comparative fault of the manufacturers of Kotex and Tampax products. Comparison of the fault of these other manufacturers is precluded because it was not timely raised by Playtex as required by Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449 (10th Cir.1982).4 In Hardin, as here, we were concerned with the propriety of allowing the jury to assess comparative fault when the issue had not been properly raised in the plead[1445]*1445ings or the pretrial order. We pointed out that “[this] circuit permits a post-judgment amendment of a pretrial order to conform to the evidence if an issue has been tried with the express or implied consent of the parties and not over objection.” Id. at 456. “Implied consent is found where the parties recognized that the issue entered the case at trial and acquiesced in the introduction of evidence on that issue without objection.” Id. at 457. The defense that a phantom party contributed to a plaintiff’s injury is in the nature of an avoidance, and normally would be required under Fed.R. Civ.P. 8(c) to be pleaded affirmatively in the answer. Id. at 458. “[B]ecause the major purpose of Rule 8(c) is to provide particularized notice of certain matters, courts must be particularly careful to scrutinize the record to ensure that plaintiff had adequate notice and opportunity to rebut the tardily-raised Rule 8(c) defense before finding that it was tried by consent.” Id.
Scrutiny of the record in this case reveals circumstances far more egregious than those the court held in Hardin to have denied the plaintiff a fair opportunity to respond. See id. at 459. Playtex did not raise this comparative fault issue in its pleadings, the pretrial order, or the pretrial hearing. Playtex filed its first set of requested jury instructions on January 18, 1985, four days before the trial started. These instructions contained references to the comparative fault of Mrs. O’Gilvie and Dr. Hays, but did not mention the fault of other manufacturers. On February 4, 1985, over a week into the trial, Playtex filed a supplement to its requested instructions that likewise did not propose an instruction on other manufacturers’ fault. On February 14, after plaintiff had rested, Playtex presented as its first witness Mrs. O’Gilvie’s sister, Cheryl Ballway, whom it had not specifically listed as a witness. Ms. Ballway testified that she had purchased all of Mrs. O’Gilvie’s sanitary products and that she always purchased Kotex tampons for Mrs. O’Gilvie. She also testified that she gave her sister a Kotex tampon on the way home from the doctor’s office.5 As the judge recognized, this evidence caught plaintiff and the court by surprise. See, rec., vol. 25, at 2590-92.
Also on February 14, Playtex filed a motion for reconsideration of the denial of its request for a directed verdict. In this motion, Playtex argued that the sister’s testimony barred plaintiff’s claim because this evidence established that Mrs. O’Gilvie had not used Playtex tampons at all, and that they were therefore not the cause in fact of her death. Rec., vol. 1, at 58-59. This argument, which framed the use question as an either/or issue, is logically at odds with the concept of comparative negligence. It therefore could not provide notice that Playtex was asserting this defense. The court denied the motion, ruling that Mrs. O’Gilvie’s use of Playtex tampons was a fact issue for the jury to resolve. The jury returned a special verdict finding that Mrs. O’Gilvie had used the Playtex product.
Not until February 22, the day the case was sent to the jury, did Playtex raise the issue of other manufacturers’ comparative fault by filing a proposed jury instruction and a verdict form that would have allowed the jury to assess the fault of other manufacturers. Thus, Playtex did not inject this issue into the case even indirectly until after all the evidence had been presented and the parties had rested. It would be a miscarriage of justice to require a new trial on an issue that Playtex did not raise until it was too late for plaintiff to rebut. Such a result would be directly contrary to our holding in Hardin.
IV.
We turn to the issues involving the punitive damages awarded in this case. Play[1446]*1446tex contends that the district court erred in submitting the issue of punitive damages to the jury, and that the size of the award is excessive. O’Gilvie argues that the court erred in reducing the amount assessed by the jury solely as a result of events occurring after the verdict had been returned.
Punitive damages are imposed under Kansas law for “a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs.” Wooderson, 681 P.2d at 1061 (quoting Cantrell v. Amarillo Hardware Co., 226 Kan. 681, 686, 602 P.2d 1326, 1331 (1979)).
“In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages.”
Id. (quoting Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650, 663 (1979)).
Our review of the record reveals abundant evidence that Playtex deliberately disregarded studies and medical reports linking high-absorbency tampon fibers with increased risk of toxic shock at a time when other tampon manufacturers were responding to this information by modifying or withdrawing their high-absorbency products. Moreover, there is evidence that Playtex deliberately sought to profit from this situation by advertising the effectiveness of its high-absorbency tampons when it knew other manufacturers were reducing the absorbency of their products due to the evidence of a causal connection between high absorbency and toxic shock. This occurred in the face of Playtex’ awareness that its product was far more absorbent than necessary for its intended effectiveness.6 In our view, this evidence is sufficient to create a jury issue on whether Playtex was “grossly negligent or recklessly indifferent to the rights of others.” Wooderson, 681 P.2d at 1062.
Playtex argues that the presence of a warning that complied with FDA requirements precludes, as a matter of law, any finding that Playtex exhibited the reckless indifference necessary to support an award of punitive damages. We disagree. As we noted above, compliance with FDA standards is not dispositive under Kansas law if a reasonable manufacturer would have done more. Under these circumstances, compliance with the FDA regulations does not preclude punitive damages when there is evidence sufficient to support a finding of reckless indifference to consumer safety-
18] Playtex also asserts that the punitive damages awarded in this case are excessive. The trial court disagreed. See infra at 1448. In Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 (1982), the Kansas Supreme Court set out the following factors relevant to an award of such damages:
“The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all [1447]*1447circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses.”
Id., 646 P.2d at 1047 (quoting Henderson, 225 Kan. at 694, 594 P.2d at 663 (1979)). “Any jury award of punitive damages involves a ‘discretionary moral judgment.’ ” Silkwood v. Kerr-McGee Corp., 769 F.2d 1451, 1461 (10th Cir.1985) (quoting Smith v. Wade, 461 U.S. 30, 52, 103 S.Ct. 1625, 1638, 75 L.Ed.2d 632 (1983)), cert. denied, — U.S. -, 106 S.Ct. 1947, 90 L.Ed.2d 356 (1986). We have reviewed the record in light of these factors. Given the financial worth of Playtex and the number of consumers whose safety was potentially impacted by Playtex’ conduct with respect to this product, we agree with the trial court that the amount of punitive damages is not excessive.
Finally, we reach O’Gilvie’s argument that the trial court exceeded its authority when it reduced the amount of the punitive damage award. As an initial matter, we address Playtex’ contention that we are without jurisdiction to reach this issue.
Playtex argues that O’Gilvie accepted the remittitur, and therefore waived the right to appeal. “[A] plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted.” Donovan v. Penn Shipping Co., 429 U.S. 648, 650, 97 S.Ct. 835, 837, 51 L.Ed.2d 112 (1977) (per curiam).
We have reviewed the record on this matter, and find no evidence that O’Gilvie consented to the remittitur or was given an opportunity to do so. On March 21, 1985, the trial court held a hearing on Playtex’ post-trial motions, including a motion to remit both the compensatory and punitive damages. After hearing arguments on the issue, the court stated, “this jury’s verdict as to punitive damages will presently stand.” Rec., vol. 30, at 3525. The court then stated that it wanted to extend another option to Playtex and suggested that it would reconsider remittitur if Playtex would agree to take its high-absorbency product off the market. Although the court stated its belief that plaintiff’s counsel would accept such a trade-off, there is no such statement on the record by plaintiff’s counsel. The court ordered a hearing on Playtex’ response to his suggestion, eventually set for May 24. The record does not contain a transcript of such a hearing, and the docket sheet does not indicate that a hearing was held on that date. Instead, on May 24 the district court filed a document styled Remittitur of Punitive Damages, ordering the reduction. The order does not offer O’Gilvie the option of accepting the remittitur in lieu of a new trial, and the record contains no indication that O’Gilvie was ever given any choice in the matter. Under these circumstances, we hold that O’Gilvie is not precluded from challenging the propriety of the remittitur on appeal.7
Alternatively, Playtex argues that a remittitur is an interlocutory order because the plaintiff must be given the option of accepting a new trial as an alternative to accepting the remittitur, and the grant of a new trial is not appealable until after the second trial has been held.
Playtex is correct that in an ordinary remittitur case, the plaintiff must be offered, a choice between a new trial and accepting a remittitur to avoid a serious problem under the Seventh Amendment, which reserves to the jury the determination of damages. See Kennon v. Gilmer, [1448]*1448131 U.S. 22, 28-30, 9 S.Ct. 696, 698-99, 33 L.Ed. 110 (1889); McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.1984); see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2815, at 99 (1973); Note, Civil Procedure — Remittitur of Punitive Damages in Exchange for Product Recall — O’Gilvie v. International Playtex, 34 Kan.L.Rev. 823, 833-34 (1986). In the usual remittitur situation, a trial judge reviews the jury’s verdict in order to determine if substantial evidence at trial supported the amount awarded. If the court finds that insufficient evidence exists, or finds the amount of the verdict a product of jury passion or prejudice, the court then may determine a reasonable amount as plaintiff’s damages and allow plaintiff to remit the excess over such amount. See Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1168 (10th Cir.1981) (en banc) (plurality opinion), cert. denied, 464 U.S. 824, 104 S.Ct. 92, 78 L.Ed.2d 99 (1983); J.T. Majors & Son, Inc. v. Lippert Bros., Inc., 263 F.2d 650, 655-56 (10th Cir.1958). In the event plaintiff refuses to remit the excess, the court must then order a new trial on the damages issue. Playtex is also correct that ordinarily a plaintiff cannot immediately appeal the grant of a new trial when he has rejected the remittitur. See Kanatser v. Chrysler Corp., 195 F.2d 104, 105 (10th Cir.1952); see also Higgins v. Smith Int’l, Inc., 716 F.2d 278, 281 (5th Cir.1983); Eaton v. Nat’l Steel Prods. Co., 624 F.2d 863, 864 (9th Cir.1980); Evans v. Calmar S.S. Co., 534 F.2d 519, 522 (2d Cir.1976). Given our conclusion below that this is not an ordinary remittitur case because the trial court lacked the power to order a remittitur based on post-trial occurrences, we hold that the cited cases are not applicable and that we have jurisdiction over the appeal.
Under both federal and Kansas law, remittitur is not proper unless the amount of damages awarded is so excessive that it shocks the judicial conscience. See, e.g., Malandris, 703 F.2d at 1168; Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650, 665 (1979). To the extent this determination involves procedural issues or requires an examination of the sufficiency of the evidence to support the verdict, the inquiry is governed by federal law. See Donovan, 429 U.S. at 649-50, 97 S.Ct. at 836-37; K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1162 (10th Cir.1985); 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4511, at 179 (1982). However, the circumstances under which punitive damages are available in a diversity case are governed by state law, see Spaeth v. Union Oil Co., 710 F.2d 1455, 1459-60 (10th Cir.1983); Saval v. BL Ltd., 710 F.2d 1027, 1033 (4th Cir.1983), as are the substantive elements upon which an award of punitive damages may be based, see Spaeth, 710 F.2d at 1460; Malandris, 703 F.2d at 1177. Thus, an assessment of the propriety of awarding punitive damages and the sufficiency of the evidence to support the award must necessarily be made by reference to the factors that the state has deemed relevant in determining whether punitive damages are appropriate.
In this case, the judge reviewed his notes on the evidence supporting the award of punitive damages at the post-trial hearing and stated that he was “satisfied there was sufficient evidence there” and “that the jury’s answers were intelligently drawn, they were not drawn out of passion or prejudice, they understood this evidence.” Rec., vol. 30, at 3517. The judge also stated that “the amount of the verdict does not bother me, nor shock my conscience, and in light of the findings this jury made I’m not surprised with it.” Id. at 3524. He then declared that had O’Gilvie been allowed to seek punitive damages of $20,000,000, an award for that amount would not have been a surprise to him and would not have been remitted.
Notwithstanding the court’s ruling that the punitive damages verdict was supported by the evidence, was not excessive, and did not shock its conscience, it assured counsel for Playtex that substantial modification or complete remittitur would be forthcoming if Playtex should decide to remove its super-absorbent tampons from the market. In so doing, the court stated [1449]*1449its view that this verdict was only the beginning, and that other cases would follow.
We find no authority in either the relevant federal or state law that would permit a trial court to remit a punitive damage award under the circumstances of this case. This court has said that, as a matter of federal law,
“absent an award so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the damages is considered inviolate.”
Malandris, 703 F.2d at 1168 (emphasis added). The trial court’s action here violated this standard both because it expressly found that the award did not shock its judicial conscience and because it based its decision to remit on events occurring after trial.8
Nor do we find any support for the court’s action in the substantive law of Kansas. The Kansas Supreme Court has clearly ruled that the only factors relevant to a punitive damage award are those involving “the quality of the character of the tortious act itself.” Ettus v. Orkin Exterminating Co., 233 Kan. 555, 665 P.2d 730, 741 (1983). In Ettus, the defendant Orkin contended that the trial court erred in refusing to admit evidence of Orkin’s attempts to settle the claim at issue. Orkin sought to present this evidence to show mitigating circumstances in defense of the plaintiff’s claim for punitive damages. Id., 665 P.2d at 739-40. In upholding the trial court, the supreme court pointed out:
“Many elements enter into settlement negotiations and offers which have no bearing whatsoever on the culpability of the defendant for the alleged wrongful conduct. Availability of witnesses or other critical evidence, the financial condition of the parties, expense of litigation, possible adverse publicity and the possible generation of other claims are just a few things that come to mind which might encourage settlement offers but bear no relevant relationship to the awarding of punitive damages. Considering the underlying policy behind the granting of punitive damages, that is punishment and deterrence, we think the rule adopted by the Oregon court is the better approach to the issue. Absent unusual circumstances, not shown in this case, we hold settlement offers and negotiations are inadmissible in evidence even when offered for the limited purpose of defending against an award of punitive damages.”
Id., 665 P.2d at 743 (emphasis added). Of particular relevance to our case is the court’s quotation from the Oregon case referred to above:
“Evidence of the parties’ conduct subsequent to the event, which produces plaintiff’s claim for punitive damages, whether aggravating or mitigating, must be probative of the defendant’s state of mind at the time of the transaction. [Citation omitted.]
“In the case here at issue the evidence of contrition and a conciliatory attitude of one of defendant’s agents after the complaint was filed has scant relevance respecting the state of mind of other agents of defendant at the time [of the injury-causing event]. Assuming the evidence established the good faith and good will of defendant’s president toward plaintiff, such conduct came as a response to the complaint, which prayed for substantial punitive damages. The evidence shows a desire to ‘buy peace’ and minimize the risk of an award of punitive damages and not that defendant dealt in good faith with plaintiff [at the time of the act complained of].”
[1450]*1450Id., 665 P.2d at 741 (quoting Byers v. Santiam Ford, Inc., 281 Or. 411, 416-17, 574 P.2d 1122, 1125 (1978), and adding emphasis).
We also find instructive the case of Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254, 276-77 (1976), which is factually analogous to the instant case. In Ford, the trial court initially approved an award of punitive damages and then remitted a large portion of the award apparently upon learning after post-trial motions of an indemnification agreement affecting payment of the award. The Kansas Supreme Court held that the trial court erred in basing its remittitur on matters outside the record. “The court is not privileged to go beyond the issues in the case and make any determination whatsoever on matters outside of those issues.”9 Id., 553 P.2d at 277.
In sum, we conclude that because the post-trial conduct upon which the trial court relied in ordering remittitur in this case had no relevance to the injurious conduct underlying the claim for punitive damages, the court was without authority under either state or federal law to reduce the award on that basis. In addition, we are compelled to point out that the court’s order subverts the goals of punishment and deterrence that underlie the assessment of punitive damages in Kansas. Far from punishing Playtex, the trial court here rewarded the company for continuing its tortious conduct long enough to use it as a bargaining chip in the remittitur proceedings. See Note, Civil Procedure — Remittitur of Punitive Damages in Exchange for Product Recall — O’Gilvie v. International Playtex, 34 Kan.L.Rev. 823, 836 (1986). The possibility that other potential defendants would be able to reduce their liability for punitive damages in the same way would encourage them to pursue the very behavior that the punitive award here was intended to deter, and thus would discourage voluntary cessation of injury-causing conduct. See id. at 838. Such a result is simply untenable.
V.
We have considered Playtex’ remaining arguments and to the extent they have not been addressed by our discussion we find them without merit. The judgment against Playtex is affirmed. The order reducing the punitive damage award is reversed, and the case is remanded to the trial court with instruction to reinstate the judgment in accordance with the jury verdict.