972 S.W.2d 35 (1998)

OWENS-CORNING FIBERGLAS CORPORATION, Petitioner,
v.
Roy MALONE et al., Respondents.
OWENS-CORNING FIBERGLAS CORPORATION, Petitioner,
v.
Barbara WASIAK, et al., Respondents.

Nos. 96-0287, 96-0512.

Supreme Court of Texas.

Argued November 21, 1996. Decided June 5, 1998. Rehearing Overruled August 25, 1998.

*38 Larry L. Simms, Mark A. Perry, Washington, DC, Kevin F. Risley, Houston, for Petitioner in No. 96-0287.

Kevin F. Risley, N. Terry Adams, Jr., Houston, Larry L. Simms, Mark A. Perry, Washington, DC, for Petitioners in No. 96-0512.

David M. Gunn, Lawrence Madeksho, Robert E. Ballard, Houston, for Respondents in No. 96-0287.

Brent M. Rosenthal, Russell W. Budd, Janice Pennington, Dallas, for Respondents in No. 96-0512.

BAKER, Justice, delivered the opinion of the Court in which GONZALEZ, SPECTOR, ABBOTT and HANKINSON, Justices, join, and in which PHILLPS, Chief Justice, and ENOCH, Justice, join in all but part II.B.1.

We granted applications for writ of error in these product liability cases to consider two issues. First, in Owens-Corning Fiberglas Corporation v. Malone, we consider what evidence, beyond a defendant's net worth, is relevant and admissible when a defendant offers the evidence to mitigate punitive damages. Second, in Owens-Corning Fiberglas Corporation v. Wasiak, we consider whether the trial court's punitive damage awards, either in this case alone or when aggregated with previous punitive damages awards for the same course of conduct, violate the Fourteenth Amendment's Due Process Clause.

We hold in Malone that evidence about the profitability of a defendant's misconduct and previously paid punitive damage awards or previously paid settlement amounts for punitive damages for the same course of conduct is relevant and may be admitted when a defendant offers it to mitigate punitive damages. We nevertheless conclude that the trial court's error, if any, in excluding this evidence was harmless. We conclude in Wasiak that neither the punitive damage awards, in this case alone or when aggregated with other punitive damages OCF has previously paid for the same wrongful conduct, violate the Fourteenth Amendment's Due Process Clause. For the reasons set forth below, we affirm the courts of appeals' judgments.

I. BACKGROUND

Malone involves three consolidated suits for injuries allegedly caused by asbestos-containing products that OCF produced or marketed. The parties tried Malone under Texas substantive law. Based on the jury's verdict, the trial court rendered judgment for the plaintiffs for $3.03 million total actual damages and $1.5 million total punitive damages. The court of appeals affirmed the trial court's judgment. 916 S.W.2d 551.

Wasiak involves four consolidated asbestos cases against OCF. In two cases, the decedents died of mesothelioma, a cancer related to asbestos exposure. In the other two cases, the plaintiffs were diagnosed with asbestosis, a scarring of the lungs caused by exposure to asbestos. The parties tried Wasiak under Alabama substantive law. After reducing the jury's verdict to reflect settlement credits from settling defendants, the trial court rendered judgment for the plaintiffs for about $1.6 million total actual damages and about $3.7 million total punitive damages. The court of appeals affirmed the trial court's judgment. 917 S.W.2d 883.

II. OCF v. Malone

A. OCF's EVIDENCE IN MITIGATION OF PUNITIVE DAMAGES

In an attempt to introduce mitigating evidence for the jury's consideration, OCF offered evidence from Peter Frank, a certified public accountant, about how much profit it earned from sales of Kaylo (an asbestos-containing insulation product), the adverse economic impact asbestos litigation has had on OCF, its past and future insurance coverage, OCF's out-of-pocket litigation costs, and the total amount of punitive damages awarded against OCF in asbestos litigation. After the trial court decided, over the plaintiffs' *39 objections^[1], that it would only allow Frank to testify about OCF's current net worth, OCF made an offer of proof for a bill of exception. For its offer of proof, OCF tendered the transcript of Frank's previous testimony and certain exhibits, that OCF stated that Frank would use if he were allowed to testify about matters beyond OCF's net worth. The thrust of Frank's prior testimony and accompanying exhibits about punitive damages against OCF was that "enough is enough." The court of appeals held that the trial court did not abuse its discretion when it sustained, in part, the plaintiffs' objections and excluded all but the net worth evidence.

Frank's prior testimony reflects that: OCF had received about 186,000 Kaylo-related asbestos claims; that about 62,000 of those claims were unresolved; that in 1992 alone, OCF received 27,000 claims, the highest annual number yet; that claims were resolved for about $10,000 on average; that OCF's net profit^[2] from Kaylo sales totaled about $1.5 million; that OCF's total costs to date due to Kaylo litigation exceeded $1 billion; that these costs have been covered, predominantly, by insurance; that $540 million to $675 million in available insurance remained for unresolved pending and future claims; that OCF's out-of-pocket costs to date for indemnity payments to plaintiffs and litigation expenses was about $20 million; that OCF's financial statements disclosed a $950 million accounting reserve to pay future uninsured Kaylo-related claims; that OCF predicted it would be able to fund this reserve with future earnings; that future unreserved and uninsured costs arising out of asbestos claims would not have a material adverse effect on OCF's financial position; that OCF was solvent, but had a negative net worth; that the original cause of OCF's negative net worth was fending off a hostile takeover bid by the Wicks Corporation; and that, if OCF's earnings trend continued, OCF could work out its negative net worth posture over the next fifteen years.

The Frank transcript does not include testimony about prior punitive damage awards against OCF. Instead, OCF offered an affidavit with attached exhibits from Robert McOmber, a former OCF lawyer, that included this information. OCF offered the McOmber affidavit with attached exhibits (cumulatively "the McOmber affidavit") along with the Frank transcript as its complete offer of proof. In its briefing, OCF asserts that if the trial court had allowed Frank to testify about matters beyond net worth, Frank's testimony, including the McOmber affidavit, would have established that twenty-eight prior Kaylo-related punitive damage judgments totaling $51,710,200 had been awarded against OCF. However, the "enough is enough" evidence shows, and OCF's counsel conceded in oral argument before this Court, that OCF has only paid about $3 million in punitive damages for Kaylo-related claims.

OCF argues that the excluded evidence is relevant to the punitive damages determination consistent with the purposes of punishment and deterrence. OCF also argues that the excluded evidence is relevant to the factors that the trial court instructed the jury to consider in determining punitive damages: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the culpability of the wrongdoer; (4) the situation and sensibilities of the parties; and (5) the extent to which the defendant's conduct offends the public's sense of justice and propriety. See Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981)(the Kraus factors); see also TEX. CIV. PRAC. & REM.CODE § 41.011(statutory adoption of Kraus factors for trier of fact's consideration).

B. APPLICABLE LAW AND STANDARD OF REVIEW

1. Admissibility of Evidence in Mitigation of Punitive Damages

Punitive damages are not designed or intended to compensate or enrich individual *40 victims. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 16 (Tex.1994); see also BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Instead, the purpose of punitive damages is to punish a party for its "outrageous, malicious, or otherwise morally culpable conduct" and to deter it and others from committing the same or similar acts in the future. See Moriel, 879 S.W.2d at 16-17; Lunsford v. Morris, 746 S.W.2d 471, 471-72 (Tex.1988).

We have approved the Kraus factors as instructions for juries about punitive damages. See George Grubbs Enters., Inc. v. Bien, 900 S.W.2d 337, 338 (Tex.1995). Moreover, although we have never considered what type of evidence is admissible to mitigate punitive damages, we have recognized that a "defendant's `ability to pay' bears directly on the question of adequate punishment and deterrence." See Lunsford, 746 S.W.2d at 472; see also Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 329 (Tex.1993)(Gonzalez, J., concurring)(contending that jury should hear net worth evidence "plus any other evidence" relevant to the amount of punitive damages).

Other courts have held that factors about a party's financial situation beyond net worth are relevant to the punitive damages amount necessary to satisfy the purposes of punitive damages. See, e.g., Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371, 379 (1992)(holding that jury may consider defendant's "financial condition" when assessing punitive damages); Stevens v. Owens-Corning Fiberglas Corp., 49 Cal.App.4th 1645, 57 Cal.Rptr.2d 525, 536-37 (1996)(holding that defendant may inform the jury about other punitive damages awards for the same conduct, but the impact of those awards can only be measured if the awards have actually been paid); W.R. Grace & Co.—Conn. v. Waters, 638 So.2d 502, 506 (Fla.1994)(allowing defendant to introduce evidence about previous punitive damage awards in second stage of bifurcated trial); Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 868 (Iowa 1994)(allowing for consideration of past awards actually paid by defendant for the same course of conduct); Tetuan v. A.H. Robins Co., 241 Kan. 441, 738 P.2d 1210, 1241 (1987)(allowing evidence of other punitive damage awards); Bennett v. Owens-Corning Fiberglas Corp., 896 S.W.2d 464, 468 (Mo.1995)(holding that the defendant's "specific financial condition" is admissible in mitigation of punitive damages); Fischer v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d 466, 480 (1986)(allowing defendants to offer evidence of previously paid punitive damage awards for jury to consider whether the defendant has been sufficiently punished); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437, 459-60 (1980)(holding that the jury may consider punitive damages, fines, and forfeitures already imposed on the defendant); Sears v. Summit, Inc., 616 P.2d 765, 772 (Wyo. 1980)("Not only may the plaintiff introduce evidence as to the wealth of the defendant, but the defendant may also introduce evidence of impecunity in order to mitigate the award of punitive damages."); see also Seltzer, Punitive Damages in Mass Tort Litigation: Addressing the Problems of Fairness, Efficiency and Control, 52 Fordham L.Rev. 37, 59 (1983)("By considering other punishment for the same conduct, along with evidence of the defendant's current financial status, a jury should be able to make a more informed judgment of the amount necessary for punishment and deterrence.").

We are persuaded that Texas law should allow defendants to introduce some evidence to mitigate punitive damages. Accordingly, we hold that evidence about the profitability of a defendant's misconduct and about any settlement amounts for punitive damages or prior punitive damages awards that the defendant has actually paid for the same course of conduct is admissible when the defendant offers it in mitigation of punitive damages.^[3] Such evidence is relevant *41 because it better informs the fact finder about the parties' situation and the amount of punitive damages necessary to fairly punish a party and to deter the conduct in question. See Lunsford, 746 S.W.2d at 472; Kraus, 616 S.W.2d at 910. Allowing such evidence also provides an important "safeguard[] to minimize the risk of unjust punishment." Moriel, 879 S.W.2d at 17. Of course, this evidence is only relevant and admissible at trial about the amount of punitive damages—usually in the second part of a bifurcated trial. See TEX. CIV. PRAC. & REM.CODE § 41.009.

Evidence that is not relevant, or is unduly prejudicial, and thus, not admissible to mitigate punitive damages, includes actual damage amounts paid by settlements or by judgments; the number of pending claims filed against a defendant for the same conduct; the number of anticipated claims for the same conduct; insurance coverage; unpaid punitive damages awards for the same course of conduct; and evidence of punitive damages that may be levied in the future. See TEX.R. EVID. 403; Dunn v. HOVIC, 1 F.3d 1371, 1389-90 (3d Cir.)(en banc), modified in part, 13 F.3d 58 (3d Cir.1993)(OCF's "failure to designate particular amounts of the settlements as representing punitive damages makes inclusion of these amounts problematic ... [thus] OCF has failed to prove that the aggregate award of punitive damages against it has been sufficient to meet the twin goals of punishment and deterrence underlying such awards."); Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 281-82 (2d Cir.1990)(rejecting argument that actual damage awards and settlements can be aggregated to establish that successive punitive damages awards are unconstitutional); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 839 (2d Cir.1967)("[I]t is hard to see what even the most intelligent jury would do with this [evidence about the potential number of similar actions], being inherently unable to know what punitive damages, if any, other juries in other states may award other plaintiffs in actions yet untried."); Baker v. Armstrong, 106 N.M. 395, 744 P.2d 170, 173 (1987)("[P]unitive damages liability coverage is not an asset which can be used to measure true punishment and ... therefore, it should not be considered by the jury in assessing a defendant's financial standing."); see also Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962, 964 (1944)(holding that proof of insurance for the defendant in connection with issues of liability or damages should not be introduced to the jury).

OCF cites comment e of the Restatement (Second) of torts § 908 (1979) to support its argument that the fact finder should be allowed to consider unpaid punitive damage awards including those awarded in the past and those that might be awarded in the many pending claims against OCF. See Restatement (Second) of torts § 908 cmt. e (1979). Section 908 provides:

(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.

(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

RESTATEMENT (SECOND) OF TORTS § 908 (1979). Comment e discusses what evidence the fact finder should properly consider to determine whether punitive damages are appropriate, and if so, the proper award. Comment e lists factors such as the defendant's conduct and motives, the plaintiff's harm, and the defendant's wealth. See Restatement (Second) of torts § 908 cmt. e (1979). OCF relies on a part of comment e that suggests that it may also be "appropriate to take into consideration both the punitive damages that have been awarded in prior suits and those that may be granted in the future...." RESTATEMENT *42 (SECOND) OF TORTS § 908 cmt. e (1979).

While we agree with section 908, we do not subscribe to comment e's suggestion that in considering the amount of punitive damages necessary to satisfy the goals of punishment and deterrence, the fact finder should be allowed to consider unpaid punitive damages. See RESTATEMENT (SECOND) OF TORTS § 908 cmt. e (1979). As comment e also explains, the "greater weight" should be placed on prior awards. RESTATEMENT (SECOND) OF TORTS § 908 cmt. e (1979). Moreover, as we have concluded, only prior paid awards and settlements for punitive damages should be considered by the fact finder. To hold otherwise risks unfair prejudice and jury confusion. See TEX.R. EVID. 403; Roginsky, 378 F.2d at 839. As commentators have recognized, many punitive damage awards are reduced after trial, reversed on appeal, or settled at a discount. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 302-307 (1987) (observing that in product liability cases, "punitive damage awards are more likely to be reversed than are other outcomes" and otherwise noting that "many awards are reduced by the trial judge or on appeal"); Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L.Rev. 1258, 1324 (1976) (Owen I) (noting that at the conclusion of the MER/29 mass tort litigation, "the only mass disaster products liability litigation that has run its course," only three verdicts included punitive damages and that of those, one was reversed and the other two were substantially reduced on appeal).

Studies also confirm that punitive damage awards are "likely to be greatly reduced by posttrial actions." MICHAEL G. SHANLEY & MARK A. PETERSON, THE INSTITUTE FOR CIVIL JUSTICE, POSTTRIAL ADJUSTMENTS TO JURY AWARDS 36 (1987); see also LANDES & POSNER, supra, at 304; Galanter, Real World Torts: An Antidote To Anecdote, 55 Md. L.Rev. 1093, 1115-1130 (1996) (citing several studies about reduction and payment of punitive damages); Milo Geyelin, Product Suits Yield Few Punitive Awards, WALL ST. J., Jan. 6, 1992, at B1 (discussing study that revealed that punitive damages are "rarely paid" and otherwise "frequently reduced after trial"). We also agree with courts that have recognized that the impact of other punitive damages awards can only be measured if they have actually been paid. See, e.g., Stevens, 57 Cal.Rptr.2d at 536-37; Spaur, 510 N.W.2d at 868; Fischer, 512 A.2d at 480; see also Dunn, 1 F.3d at 1389-90 (requiring proof of punitive damages "actually paid in the past" and rejecting consideration of "non-final awards of punitive damages" and of settlements where OCF did not segregate settlement amounts paid as punitive damages); Johnson v. Celotex Corp., 899 F.2d 1281, 1287-88 (2d Cir.1990) (rejecting defendant's request that appellate court take judicial notice of other punitive damage awards because defendant did not provide any documentation about "exactly how much money they have actually paid in punitive damages").

At oral argument, Malone asserted that, if evidence to mitigate punitive damages is relevant, the trial court should consider it as a legal issue rather than submit it to the fact finder. However, we believe that the fact finder will better perform its role as the community's conscience in determining the proper punitive damages award by considering such evidence. See TEX. CIV. PRAC. & REM.CODE § 41.010(b) ("The determination of whether to award exemplary damages and the amount of exemplary damages to be awarded is within the discretion of the trier of fact.") and § 41.011 (providing that in determining exemplary damages, the fact finder shall consider evidence about the parties' situation); Moriel, 879 S.W.2d at 30 (leaving question of punitive damages to the jury); see also Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 408-09 (5th Cir. 1986) (holding that punitive damage award in asbestos case should be left to the jury to decide in the first instance); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901-02 (Tenn. 1992) (establishing criteria for the fact finder to consider during second phase of Moriel style bifurcated trial); Seltzer, supra, at 41, 60-61 (recognizing jury's role "as the conscience of the community in assessing an amount of punitive damages that reflects the degree of the defendant's culpability"). Consequently, we hold that the fact finder, in the *43 first instance, should consider properly admitted evidence in mitigation of punitive damages in deciding the amount of punitive damages, if any, to award.

Whether a punitive damage award violates state common law or is "grossly excessive" in violation of a party's due process rights remains for the courts to decide when properly preserved. See BMW, 517 U.S. at 568, 116 S.Ct. 1589 (setting constitutional limits on the size of punitive damages awards); see also Owen, A Punitive Damages Overview: Functions, Problems, and Reform, 39 VILL. L.REV. 363, 384-85 (1994)(Owen II)(recognizing that adequate jury instructions and appellate review of punitive damages verdicts helps "assure that the standards ... are applied in a manner that is as fair and accurate as possible"); Seltzer, supra, at 41(noting that using a bifurcated trial procedure and appellate review helps "assure that juries have a continuing voice in the amount of punishment while providing the safeguards necessary to prevent unfairness to defendants"). Indeed, Texas law requires careful appellate scrutiny of punitive damage awards. See TEX. CIV. PRAC. & REM.CODE § 41.013 (regarding judicial review of punitive damage awards); Ellis County State Bank v. Keever, 915 S.W.2d 478, 479 (Tex.1995)(same). Thus, while the fact finder decides whether to award punitive damages, and if so, how much, in the first instance, courts maintain an important role in reviewing such awards.

2. Standard of Review

Evidentiary rulings are "committed to the trial court's sound discretion." City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). A trial court abuses its discretion when it rules "without regard for any guiding rules or principles." Alvarado, 897 S.W.2d at 754. Trial courts may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See TEX.R. EVID. 403; State v. Malone Serv. Co., 829 S.W.2d 763, 767 (Tex.1992). An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. See State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n. 5 (Tex.1989). Moreover, we will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See TEX.R.APP. P. 44.1; see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).

C. ANALYSIS

While some of OCF's "enough is enough" evidence, such as OCF's net worth and its profits from the sale and manufacture of Kaylo, relates to "the situation of the parties" under Kraus and to the size of the punitive damages award necessary to sufficiently punish and deter OCF, other parts are inadmissible. See Kraus, 616 S.W.2d at 910; see also Lunsford, 746 S.W.2d at 472. The Frank transcript and the McOmber affidavit include evidence about the average value of resolved claims, litigation expenses, and prior payments for actual damages. Evidence about past settlements for actual damages does not necessarily aid the fact finder in deciding what amount of punitive damages will satisfy the policy goals of punishment and deterrence. See Dunn, 1 F.3d at 1390-91; Pittsburgh Corning Corp., 901 F.2d at 281-82. As we have explained, evidence of past settlements must specify the amount allocated for punitive damages. Actual damage settlements or awards and litigation expenses in other cases are not relevant to the policy purposes supporting punitive damage awards. See Dunn, 1 F.3d at 1390-91; Pittsburgh Corning Corp., 901 F.2d at 281-82. Unlike evidence of other punitive damage settlements or awards against OCF, included as punishment for the same course of conduct, evidence of actual damages and expenses in other cases is inappropriate because each case is fact specific and unrelated to the particular plaintiffs here. See Pittsburgh Corning Corp., 901 F.2d at 281-82; see also Malone Serv. Co., 829 S.W.2d at 769 ("[E]vidence of differing outcomes in unrelated cases ... could cause incalculable prejudice.") (Gonzalez, J., concurring).

The trial court's ruling also excluded evidence about insurance, 62,000 unresolved asbestos claims, and about twenty-eight judgments *44 for punitive damages totaling almost $52 million, most of which OCF has not paid. Although evidence about pending and estimated future claims and unpaid judgments (including evidence about insurance coverage for those claims or judgments) may be relevant to a defendant's economic condition, the trial court properly excluded evidence of such contingent liabilities, some or all of which may never be paid, on the grounds that such evidence is likely to confuse the issues and to mislead the jury. See Tex.R. Evid. 403; Roginsky, 378 F.2d at 839; Stevens, 57 Cal.Rptr.2d at 537; Baker, 744 P.2d at 173. The trial court did not abuse its discretion by excluding evidence about these matters.

While we agree with OCF that evidence about the profitability of its misconduct and about punitive damages paid for the same course of conduct should be admissible in mitigation of punitive damages, the record does not support OCF's argument that the trial court's ruling probably caused the rendition of an improper judgment. See TEX. R.APP. P. 44.1. As we have detailed, OCF's "enough is enough" evidence does not reveal that imposing punitive damages in this case exceeds the goals of punishment and deterrence. Indeed, the record shows that OCF has only paid $3 million in punitive damages for Kaylo-related claims. Moreover, after the trial court's ruling that OCF could introduce evidence about its negative net worth to help support its "enough is enough" argument, OCF did not introduce any such evidence. OCF essentially passed on its right to present evidence about its financial condition to the jury to support its "enough is enough" argument. Accordingly, we hold that the trial court's error, if any, was harmless error. See TEX.R.APP. P. 44.1; Gee, 765 S.W.2d at 396. OCF also complains about additional trial court evidentiary rulings that the court of appeals' opinion details. For the reasons the court of appeals expressed, we agree that the trial court's errors, if any, did not cause rendition of an improper judgment. See TEX.R.APP. P. 44.1.

Accordingly, we affirm the court of appeals' judgment in Malone.

III. OCF v. Wasiak

A. SINGLE PUNITIVE DAMAGE AWARD AND DUE PROCESS

Initially, OCF again complains about the exclusion of Frank's testimony at trial. Here, OCF sought to read into evidence a transcript of Frank's former testimony with accompanying exhibits as its "enough is enough" evidence. In response to the plaintiffs' objection that OCF had not shown Frank's unavailability, OCF's attorneys argued that Frank, a California resident, was not subject to the trial court's subpoena power, and added that Frank was on a European vacation. We agree with the court of appeals when it held that the trial court properly excluded OCF's "enough is enough" evidence because OCF did not establish Frank's unavailability under Texas Rule of Evidence 804 for transcribed testimony from another proceeding. See TEX.R. EVID. 804; Hall v. White, 525 S.W.2d 860, 862 (Tex.1975); Cf. Tex.R. Evid. 801(e)(3)(about use of depositions from same proceeding); see also Evans, 774 S.W.2d at 658 n. 5. Also, for the reasons we explained in Malone, the trial court's error, if any, in excluding Frank's prior testimony was not harmful.

After the trial, the trial court held a full evidentiary hearing on OCF's motion to set aside or reduce the punitive damage awards. At the posttrial hearing, the trial court heard OCF's evidence, including Frank's live testimony, about its financial condition, including evidence about previous asbestos-related punitive damage awards. That record also shows that, at the time, OCF had only paid $3 million in past punitive damage awards. And again, counsel for OCF conceded this fact at oral argument before this Court. OCF's posttrial evidence shows that it has not paid any punitive damages in Texas or Alabama.

OCF first argues that the punitive damage award in this case is unconstitutionally excessive under BMW of North America v. Gore.^[4] As a threshold matter, Wasiak argues *45 that punitive damages are the functional equivalent of compensatory damages in wrongful death cases governed by Alabama law, and, consequently, this Court should not grant OCF constitutional immunity from punitive damages in such cases. While it is true that punitive damage awards in wrongful death cases are accorded special treatment under Alabama law, the damages recoverable are intended to serve a punitive purpose and "are in no sense compensatory." Gulf, Mobile & Ohio R.R. Co. v. Williams, 251 Ala. 516, 38 So.2d 334, 336 (1949); see also Atkins v. American Motors Corp., 335 So.2d 134, 144 (Ala.1976) ("Damages [in wrongful death cases] are to be awarded that will punish the tortfeasor for the act and deter him and others from similar future conduct."). Because punitive damage awards in Alabama wrongful death cases are meant to punish and deter, we conclude that the BMW constitutional analysis should apply in this case.

1. Applicable Law

The Due Process Clause "prohibits a State from imposing a `grossly excessive' punishment on a tortfeasor." BMW, 517 U.S. at 562, 116 S.Ct. 1589. BMW marks the first time that the Supreme Court found a punitive damages award so excessive that it violated a party's substantive due process rights. See BMW, 517 U.S. at 585-86, 116 S.Ct. 1589. Under BMW, even if an assessment of punitive damages is not deemed excessive under governing state law, it may violate a party's substantive due process right to protection from "grossly excessive" punitive damages awards. See BMW, 517 U.S. at 568, 116 S.Ct. 1589; see also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430 n. 12, 116 S.Ct. 2211 (1996)(noting that BMW provides "an ultimate federal constitutional check for exorbitancy" of punitive damages). Similarly, we have recognized that, "like criminal punishment, punitive damages require appropriate substantive and procedural safeguards to minimize the risk of unjust punishment." See Moriel, 879 S.W.2d at 16-17.

BMW establishes three "guideposts" for determining whether a punitive damages award is unconstitutionally excessive: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between actual and punitive damages; and (3) a comparison of the punitive damages awarded and other civil or criminal penalties that could be imposed for similar misconduct. See BMW, 517 U.S. at 574-75, 116 S.Ct. 1589; see also TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 462,