                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2857
                                    ___________

Richard M. Jones,                     *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of South Dakota.
Todd V. Swanson,                      *
                                      *
           Defendant - Appellant.     *
                                 ___________

                              Submitted: May 15, 2003

                                   Filed: September 3, 2003
                                    ___________

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1 District Judge.
                           ___________

BYE, Circuit Judge.

        A jury awarded Richard M. Jones $450,000 in compensatory damages and
$500,000 in punitive damages against Todd V. Swanson in this diversity action for
alienation of affection. Todd appeals the district court’s denial of his motions for new
trial and judgment as a matter of law. We affirm conditioned on Richard’s acceptance
of a remittitur order on the verdict.


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
                                            I

       Donna Jones and Todd Swanson grew up a small rural South Dakota
community. They became romantically involved for a short time in 1977 upon Donna
graduating from high school. They rekindled the romance in 1978 and again dated
for a short time. The relationship ended in 1978, and the two did not see one another
for twenty years until 1998.

       In the interim, Todd became an orthopaedic surgeon and moved to Las Vegas,
Nevada. He married and raised a family. Donna met Richard Jones shortly after the
relationship with Todd ended and was married to him in 1981. Donna and Richard
have four children and settled in Sioux Falls, South Dakota. Richard worked as a
hospital administrator at Sioux Valley Hospital where Donna also worked as a nurse.

       By 1998, Donna believed she and Richard were no longer close. Donna
confided to friends she was dissatisfied with her job and marriage. While she
described her marriage at the trial as being “near perfect,” she admitted telling friends
she “loved Richard as the father of her children but not as a woman loves a man.” In
the months leading up to September 1998, Donna took to drinking with friends and
staying out late. On one occasion in August 1998, she attended a party at a friend’s
house without Richard. Donna drank heavily and become very intoxicated. In the
course of the evening she met Ted Ries, and in her intoxicated state became
somewhat enamored of him. The two exchanged a few kisses and eventually ended
up in bed together. Donna testified she awoke the next morning partially dressed and
in bed with Ries, who was naked. Neither Ries or Donna could remember exactly
how they ended up in bed together, but both indicated they did not believe they had
engaged in intercourse. Ries testified they “fooled around” after going to bed and
described Donna as flirtatious, overly friendly and said she did not act like a married
woman. Donna returned home early the following morning and told Richard she had



                                          -2-
stayed at her friend’s home because she drank too much and did not want to drive.
She did not tell Richard about the encounter with Ries.

      Donna contacted Ries twice following the incident. The first time, about a
week later, Donna called Ries and asked him out for a drink. Ries declined, having
discovered Donna was married. Donna testified she called Ries to find out exactly
what had happened. Donna called Ries again about six months later, asked him out
for a drink, and told him his name might come up in her upcoming divorce
proceeding. It was against this backdrop that Donna and Todd met again and
rekindled their previous relationship.2

       On September 23, 1998, Todd’s father suffered a heart attack and was taken to
Sioux Valley hospital. Todd’s family came to the hospital and by chance Donna
noticed them in the ER and stopped to visit. The next day, Donna visited the family
again and ran into Todd who had arrived overnight. The two struck up a
conversation, and Donna mentioned she was having a birthday the next day. Todd
asked if he could buy her lunch and Donna agreed. The next day Donna and Todd
met at a restaurant. Todd presented her with a birthday card and informed the waiter
it was Donna’s birthday. Todd also made arrangements for a special birthday dessert.
Todd testified Donna talked about her dissatisfaction with her job and marriage
during lunch. In particular, she complained she was not getting as much sex from her
husband as she wanted. Todd also testified Donna rubbed her leg against his during
lunch.

     After lunch, Donna and Todd took a walk in a nearby park. As they walked,
Todd put his arm around Donna. When they sat down on a bench, Todd put his hand


      2
        The only contact between Donna and Todd between 1978 and 1998 was a
telephone call Donna made to Todd in 1996 soliciting him to buy vitamins she was
selling.

                                        -3-
on her knee. Donna again voiced her dissatisfaction with her marriage, saying she
“loved Richard as the father of her children but not as a woman loves a man.” Donna
invited Todd to kiss her and they kissed several times. Todd remarked he had made
a “huge mistake” letting Donna go twenty years earlier, and Donna told Todd she had
always loved him.

       Todd returned to Las Vegas but about a week later the two spoke over the
telephone. There was conflicting evidence at trial as to who placed the first call; both
said the other called, but it is undisputed over the next several weeks Todd and Donna
spoke hundreds of times.3 Both expressed their love and affection for the other
during the many calls and, among other things, they talked about meeting somewhere.
Todd told Donna he was planning to attend a meeting in San Francisco and asked if
she could meet him. Donna agreed and made the necessary arrangements, including
paying for her own plane ticket. Donna told Richard she was going to meet a college
friend.

       Before leaving for San Francisco, Todd sent Donna a CD and told her to listen
to a song entitled “I’ll Go On Loving You.” When she arrived at the airport, Todd
was there to meet her and gave her a bouquet of flowers. They went to a hotel where
Donna registered as “Mrs. Donna Swanson.” Donna also booked a separate room
under her name in case Richard called. Donna, however, stayed the entire weekend
with Todd in his room. Over the course of the weekend, Todd bought Donna a
number of gifts and also took her to some of the meetings he attended. At one of the
meetings, Donna met Wolfgang Schweizer, the president of Plus Orthopedics.
Schweizer and Donna discussed the possibility of her becoming a sales representative




      3
       Telephone records show Donna placed approximately 386 calls and Todd
placed 186 calls. Todd gave Donna access to a calling card so the calls would not
show up on her bill and she would not have to pay for them.

                                          -4-
for Plus Orthopedics and invited her to visit the company’s European headquarters
in December.

       After San Francisco, Donna and Todd went back to exchanging telephone calls,
cards and gifts. During their calls they talked about leaving their respective spouses
and making a life together, including where they would live and how their children
would react. Among other things, Todd promised Donna a “Brady Bunch” family
and future. In cards to Donna, Todd told her how much he cared for and loved her
and how much he looked forward to being with her again. He also expressed concern
and guilt over the affair. “I love our closeness, but I am still very concerned about
you and your kids, and continue to have feelings of guilt toward both our spouses.”
And, “I feel terrible that some unfortunate man may eventually lose you, but I am
being selfish, and want you for myself. I look forward to that day.”

       In early November, at Todd’s request, Donna met with a counselor to discuss
divorce and how it would affect her children. The counselor testified Donna felt
Richard was not meeting her emotional and physical needs and she was unhappy and
confused. The counselor also testified he believed Donna was already on her way out
of the marriage.

      At about this time, Donna told Richard she had been invited to Europe by Plus
Orthopedics to explore the possibility of future employment.4 In mid-November, she
told Richard she was contemplating divorce. Donna denied any involvement with
another man and told Richard she was not sure she loved him anymore.


      4
        Donna was concerned Richard would suspect something so she asked Todd
to obtain a letter for her from Plus Orthopedics tendering an offer to visit its European
headquarters. Todd obtained some Plus Orthopedics stationary, wrote a letter to
Donna, and forged the signature of a Plus Orthopedics’s representative. The
representative later learned of the forgery but did not object. Instead, he provided
Donna with a second letter bearing his actual signature.

                                          -5-
       Days later, Donna’s sister-in-law and nephew were killed in a car accident.
Todd, who was in Sioux Falls for Thanksgiving, attended the funeral. It was then
Richard began to suspect something between Todd and Donna. After the funeral,
Richard had to leave town and Donna invited Todd to spend the night at her home.
Todd accepted. The two also spent one or more nights at Todd’s hotel. A few days
later, Donna admitted to Richard she was having an affair with Todd and they were
planning to travel to Europe together. Before returning to Las Vegas, Todd and
Donna met jointly with a counselor to discuss the ongoing relationship and concerns
they had about their children.

       In December 1998, Donna and Todd went to Europe as planned. The trip
lasted 10 days and Todd and Donna stayed together each night. Plus Orthopedics
paid for Donna’s travel expenses but Todd paid for everything else. While in
Switzerland, Donna and Todd visited a Swiss bank to discuss opening an account so
Todd could hide some of his money prior to his anticipated divorce.

      After their European vacation Todd and Donna began joint and individual
counseling sessions to prepare for what lay ahead. In January, Donna moved out of
the family home. Todd had encouraged her to get her own place so he could call
whenever he wanted. After she moved out, Donna and Todd continued to talk and
correspond. In January, she traveled to California to meet him at a medical
convention where they spent two days and nights together. It was there, for the first
time, Todd suggested ending the affair.

      Todd testified he began having doubts about the affair and suggested they
reconcile with their spouses. Todd testified he told Donna that Richard was a good
man and father, and she needed to work on her marriage because their relationship
was not going to work out. Todd’s, emotions, however, proved fickle. He later sent
Donna a Valentine’s Day card telling her how much he loved her. And still later that



                                         -6-
month, when Donna showed up unexpectedly at a convention he was attending, Todd
became upset because he was there with his business partner.

       In April 1999, Donna moved back home with Richard and they attempted
counseling to save the marriage. On July 4, 1999, Richard gave Donna a diamond
ring and begged her to stay and work things out. Later that month, when Todd
returned to Sioux Falls for his sister’s wedding, Donna contacted him and asked to
meet at a local park. The two had a picnic lunch together and Donna suggested sex
in the park. Todd refused, but later dropped by Donna’s house while out jogging.
Todd contends he stopped by because he was concerned about Donna after he refused
her invitation for sex. Todd, however, knew Richard was away and he and Donna
were again intimate in her bedroom.

       After Todd’s trip to Sioux Falls in July, the relationship continued to cool until
November 1999, when Donna flew to Seattle, Washington. Donna told Richard she
was going to meet a friend but was in fact going to meet Todd. Once again, Todd and
Donna stayed together in Todd’s hotel room. This was the last time Todd and Donna
were intimate together. Afterwards, Todd told Donna to go home and reconcile with
her husband because it was not going to work out. Instead of flying home, Donna
flew to San Diego where she planned to reconnect with Todd who was attending
another seminar. Todd, however, flew first to Las Vegas and picked up two of his
children. When he arrived in San Diego, he left a message telling Donna he would
not be able to meet her. Donna was not dissuaded. Instead she waited for Todd at the
airport in San Diego because “she wanted [him] to see [her] one more time.”

       In May 2000, Richard filed suit against Todd for alienation of affection.
Donna moved out of the family home permanently in June 2000, and Richard sued
for divorce on August 9, 2000. The tort claim was tried to a jury beginning February
5, 2002. The jury returned a verdict in favor of Richard and awarded $450,000 in
actual damages and $500,000 in punitive damages. Todd moved for judgment as a

                                          -7-
matter of law and for a new trial. The district court denied Todd’s motions and he
appeals.

       On appeal, Todd argues 1) there was insufficient evidence to prove the tort of
alienation of affection, 2) there was no causal connection between the affair and the
breakup of the marriage, 3) the district court improperly instructed the jury regarding
the elements and defenses applicable to the tort of alienation of affection, 4) the
district court improperly excluded evidence of Richard’s post-breakup but pre-
divorce extra-marital relationship, and 5) the compensatory and punitive damages
awards were unwarranted by the evidence and excessive.5

                                          II

      A.     Sufficiency of the evidence offered to prove alienation of affection

      Todd argues there was insufficient evidence to show he intended to alienate
Donna’s affections or that his actions caused the breakup of the marriage. He
contends the district court erred in denying his motion for judgment as a matter of
law, and alternatively, argues the district court abused its discretion by denying his
motion for a new trial.




      5
        Todd also complains the tort of alienation of affection is an anachronism and
points out its continued viability as a legitimate cause of action has been roundly
criticized. See Hunt v. Hunt, 309 N.W.2d 818, 821 (S.D. 1981). The propriety of
South Dakota’s decision to recognize alienation of affection as a tort claim is not an
issue for this court. Despite repeated invitations, the Supreme Court of South Dakota
has refused to judicially abolish the cause of action. See Veeder v. Kennedy, 589
N.W.2d 610, 613-16 (S.D. 1999). Thus, Todd’s arguments against the cause of action
provide no assistance to us in resolving the issues presented on appeal.

                                         -8-
        We review the district court’s denial of a motion for judgment as a matter of
law de novo using the same standards as the district court. Keenan v. Computer
Assocs. Int’l, 13 F.3d 1266, 1268 (8th Cir. 1994). A motion for judgment as a matter
of law presents a legal question to the district court and us on appeal: “[W]hether
there is sufficient evidence to support the jury’s verdict.” White v. Pence, 961 F.2d
776, 779 (8th Cir. 1992). We view the “evidence in the light most favorable to the
prevailing party and must not engage in a weighing or evaluation of the evidence or
consider questions of credibility.” Keenan, 13 F.3d at 1268. The legal standard
requires 1) all direct factual conflicts must be resolved in favor of the plaintiff, 2) all
facts in support of the plaintiff that the evidence tended to prove must be assumed,
and 3) the plaintiff must be given the benefit of all reasonable inferences. Hopson v.
Fredericksen, 961 F.2d 1374, 1379 (8th Cir. 1992). A grant of judgment as a matter
of law is proper only if the evidence viewed according to this standard would not
permit “reasonable jurors to differ as to the conclusions that could be drawn.” Dace
v. ACF Indus., Inc., 722 F.2d 374, 375 (8th Cir. 1983).

       We review for abuse of discretion the district court’s denial of a motion for a
new trial. Keenan, 13 F.3d at 1269. When “the basis of the motion for a new trial is
that the jury’s verdict is against the weight of the evidence, the district court’s denial
of the motion is virtually unassailable on appeal.” Keeper v. King, 130 F.3d 1309,
1314 (8th Cir. 1997) (internal quotation omitted). When reviewing a district court’s
decision to deny a motion for new trial, “we give great deference to its judgment,
because the district court has the benefit of hearing testimony and observing the
demeanor of witnesses throughout the trial.” Bonner v. ISP Techs., Inc., 259 F.3d
924, 932 (8th Cir. 2001) (citation omitted).

       The elements of a claim for alienation of affection are 1) wrongful conduct of
the defendant, 2) loss of affection or consortium, and 3) a causal connection between
the wrongful conduct and the loss of affection or consortium. Hunt, 309 N.W.2d at
820. The essence of the action is malicious interference with the marriage

                                           -9-
relationship, Monen v. Monen, 269 N.W. 85, 87 (S.D. 1936), and a loss of consortium
is the actionable consequence of an action for alienation of affection. Holmstrom v.
Wall, 268 N.W. 423, 424 (S.D. 1936). Consortium is a right growing out of the
marital relationship, and includes the right of either spouse to the society,
companionship, conjugal affection, and assistance of the other. Morey v. Keller, 85
N.W.2d 57, 58 (S.D. 1957). “A loss or impairment of any such elements will sustain
an action for alienation of affection.” Id. “However, if it appears there was no
affection to alienate, recovery is precluded. Pankratz v. Miller, 401 N.W.2d 543, 546
(S.D. 1987) (citing Trainor v. Deters, 259 N.E.2d 131, 134 (Ohio Ct. App. 1969)).

      A wife conceivably may transfer her affection from her husband to
      another because of the latter’s kindliness, attractiveness, desirability,
      financial superiority, or some other reason. Such motivation for transfer
      of affection may be a substantial factor even though the defendant had
      nothing to do with it. The gravamen of an action for alienation of
      affection [therefore] is enticement. It is based on an intentional tort,
      not negligence. The acts which lead to the loss of affection must be
      wrongful and intentional, calculated to entice the affection of one spouse
      away from the other. . . . (emphasis added)

Pankratz, 401 N.W.2d at 548-49 (quoting Pedersen v. Jirsa, 125 N.W.2d 38, 43
(Minn. 1963)).

      It also appears to be the general rule that actual intent to alienate the
      affection of the spouse of another need not necessarily be shown if
      defendant’s conduct is inherently wrong and tends to, and does, have
      that effect. In other words every person is presumed to intend the
      consequences of his own voluntary acts.

Pearsall v. Colgan, 76 N.W.2d 620, 621 (S.D. 1956).

      Todd argues the evidence showed the marriage between Donna and Richard
was over before he arrived on the scene and his actions did not cause the alienation

                                        -10-
of Donna’s affection. In other words, Todd argues his actions were not the proximate
cause of Donna’s loss of affection for her husband. See Pankratz, 401 N.W.2d at 546
(holding there can be no recovery against a defendant if it appears there was no
affection to alienate).

        There was considerable evidence tending to show the marriage was on
precarious footing before Todd arrived on the scene. In the months leading up to the
affair, Donna repeatedly expressed dissatisfaction with her marriage and frequently
stayed out late drinking with friends. The encounter with Ries further illustrates the
uncertainty of the marriage’s future, and seriously undermines Donna’s testimony
claiming she loved Richard. Finally, Donna’s counselor testified he met with Donna
in November 1998, just as the affair was beginning, and Donna was already on her
way out of the marriage.

       There was, however, also evidence suggesting the marriage may have survived
or at very least Donna still had affection for Richard. Donna testified the marriage
had been near perfect and minimized the problems leading up to the affair. As the
affair wound down, Donna moved back home with Richard and started marriage
counseling in an attempt to save the relationship. Despite Donna’s attempts to
reconcile with Richard, Todd continued to pursue the relationship. Clearly Donna
was dissatisfied with the marriage, but the evidence was sufficient for the jury to
conclude she harbored affection for Richard which was alienated as a result of Todd’s
involvement.

       Todd also argues he was not solely to blame for the affair. Rather, Donna was
infatuated with him and pursued the relationship with even greater enthusiasm than
he. Richard’s cause of action is not dependent upon finding Donna was an unwilling
participant in the affair. It could be argued Donna’s willingness to become entangled
in the affair demonstrates she had no affection for Richard or Todd’s conduct was
not the proximate cause of her loss of affection. But the jury concluded Donna still

                                        -11-
loved Richard despite problems in their marriage and would have continued to love
him if Todd had not interjected himself. “To justify a recovery by plaintiff in this
action, the evidence must be sufficient to show that the wife was induced to abandon
the husband by some active and direct interference on the part of defendant.”
Pearsall, 76 N.W.2d at 622 (citation omitted).

       Along these same lines, Todd argues Donna was infatuated with him and South
Dakota law does not allow a recovery for alienation of affection when the loss of
affection results from a wife’s infatuation. Pankratz, 401 N.W.2d at 548-49. Todd,
however, oversimplifies the holding in Pankratz. The Pankratz court indicated
infatuation - by itself - is not a basis for awarding damages because the “gravamen
of an action for alienation of affection is enticement.” Id. (quoting Pedersen, 125
N.W.2d at 38). Thus, evidence of infatuation may be offered to prove the absence of
wrongful conduct or to demonstrate a lack of causation, but it does not obviate a
defendant’s wrongful conduct. Here, the jury was free to conclude Donna was
infatuated but left Richard because of Todd’s active enticement.

      Todd also argues he never intended to harm Richard. The intent to inflict
harm, however, is not an element of the tort. The loss to Richard was the natural
consequence of Todd’s attempts to win over Donna’s love, and every person is
presumed to intend the consequences of his own voluntary acts. Pearsall, 76 N.W.2d
at 621. The jury was free to conclude Todd knew or should have known his actions
would be harmful to Richard irrespective of his desire to cause harm.

      Viewing this evidence in the light most favorable to the verdict, Keenan, 13
F.3d at 1268, it cannot be said there was insufficient evidence to support the jury’s
verdict. Nor do we conclude the district court abused its discretion in denying the
motion for new trial based on sufficiency of the evidence.




                                        -12-
      B.     Jury instructions

      Todd argues the district court erred when it refused to instruct the jury on
infatuation. Todd proposed the following instruction:

      The mere fact that a wife may become infatuated with a person other
      than her husband gives no rise for a cause of action for alienation of
      affection, in the absence of a showing that the other person intentionally
      and wrongfully caused the husband to lose his wife’s affection.

Appellant’s App. at 17.

      Todd argues the instruction is based on language taken directly from Pankratz,
401 N.W.2d at 549, and the court’s refusal to give the instruction deprived him of a
viable defense. We disagree.

       The standard for reviewing alleged errors in jury instructions is whether the
instructions, taken as a whole and viewed in light of the evidence and applicable law,
fairly and adequately submitted the issues in the case to the jury. The form and
language of jury instructions are committed to the sound discretion of the district
court so long as the jury is correctly instructed on the substantive issues in the case.
This court will reverse on the basis of instructional error only if it finds the error
affected the substantial rights of the parties. White v. Honeywell, Inc., 141 F.3d
1270, 1278 (8th Cir. 1998) (internal citations and quotations omitted). “In diversity
cases the substance of jury instructions is a matter governed by the applicable state
law.” Fox v. Dannenberg, 906 F.2d 1253, 1258 (8th Cir. 1990). Accordingly, the
jury instructions, when read as a whole, must fairly and adequately present the
relevant state law. Walton Gen. Contractors, Inc. v. Chicago Forming, Inc., 111 F.3d
1376, 1382 (8th Cir. 1997).




                                         -13-
       The jury was instructed it had to find Todd intentionally acted to deprive
Richard of Donna’s affection or Todd’s inherently wrongful conduct caused Donna’s
affection to be alienated. Appellant’s App. at 26. The jury was further instructed it
had to find “[t]hat the [wrongful] acts of the defendant were a proximate cause of the
loss of affection . . .” Id. at 25. Todd argues the district court’s refusal to give the
additional instruction on infatuation deprived him of a defense to the claim.

       We do not doubt Donna was infatuated with Todd. We do not, however,
interpret Pankratz as vitiating Todd’s wrongful conduct and barring Richard’s claim
because of Donna’s infatuation. Rather, Pankratz merely recognizes that evidence of
infatuation may prove the absence of wrongful conduct or demonstrate a lack of
causation. Here, the jury was properly instructed on the elements of alienation of
affection and proximate cause. Thus, we find no error.

       Next, Todd argues the district court erred when it refused to instruct the jury
that “[i]n an alienation of affection case, it must appear that defendant was the active
or aggressive party.” See Pearsall, 76 N.W.2d at 622. Todd’s requested instruction
accurately quotes Pearsall, but cases subsequent to Pearsall suggest the language is
no longer viable law (if it ever was) or its application is limited to Pearsall. Plaintiffs
have routinely been allowed to recover for alienation of affection even when the
errant spouse was a willing if not co-equal participant in the affair. See Veeder, 589
N.W.2d at 613. The jury was instructed it had to find Donna felt some affection for
Richard before the affair began. Appellant’s App. at 28. The jury was also instructed
Todd had to have acted wrongfully, as opposed to passively accepting an invitation
from Donna. Id. at 26. Those instructions left Todd free to argue Donna’s
willingness to become involved in the affair and her aggressive pursuit of him proved
she did not love Richard and Todd’s conduct was not the cause of her loss of
affection. We conclude Pearsall does not support Todd’s proposed instruction
excusing a defendant’s conduct if he was less aggressive.



                                           -14-
       Todd’s final claim of instructional error relates to the district court’s rejection
of his instruction requiring the jury to find Todd’s actions were “intentional and
malicious.” Instead, the court chose to instruct the jury using an instruction approved
in Veeder, 589 N.W.2d at 618-19 (approving an instruction indicating the jury was
to find the defendant acted wrongfully). Because the instruction given by the district
court was essentially identical to the instruction given in Veeder, we find no error in
its use.

      C.     Richard’s post-affair/pre-divorce extra-marital affair

      Sometime after Richard filed for divorce but before the divorce was finalized,
he had an extra-marital affair. The district court excluded evidence of the affair
because Richard did not claim damages for loss of sexual relations. The district court
also concluded the evidence, even if marginally relevant to other issues, would be
more prejudicial than probative. Todd contends exclusion of the evidence warrants
a new trial.

       We review the district court’s rejection of evidence as irrelevant for an abuse
of discretion, Laubach v. Otis Elevator Co., 37 F.3d 427, 428-29 (8th Cir. 1994), and
will grant a new trial on the basis of incorrect rulings only if a different outcome is
likely. EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998).

       Under Rule 403 of the Federal Rules of Evidence, the district court was
required to weigh the probative value of the evidence against the danger of unfair
prejudice, and was empowered to exclude this evidence only if its probative value
was substantially outweighed by the danger of unfair prejudice. A trial court’s ruling
as to the admissibility of such evidence will not be disturbed unless there is a clear
and prejudicial abuse of discretion. Radtke v. Cessna Aircraft Co., 707 F.2d 999,
1001 (8th Cir. 1983) (citation omitted).



                                          -15-
       We have some misgivings about whether evidence of Richard’s affair was
irrelevant. The evidence suggests he too was unhappy and might be relevant to the
issue of what love and affection was present in the marriage. On the other hand,
Richard’s affair did not happen until his marriage to Donna was clearly over. Thus,
while it may have been remotely relevant, we agree the probative value was
substantially outweighed by the prejudicial effect of the evidence.

       As concerns the jury’s finding of liability, we find no error or abuse of
discretion in the district court’s denial of Todd’s motions for judgment as a matter of
law or new trial, and affirm.

      D.     Damages

      Todd next argues the award of $450,000 in compensatory damages was
excessive and resulted from passion and prejudice.

      Although the appropriateness of a new trial is a federal procedural question
decided by reference to federal law, Pitts v. Electro-Static Finishing, Inc., 607 F.2d
799, 802 (8th Cir. 1979), when determining if a state law claim damage award is
excessive, state case law guides our inquiry. England v. Gulf & Western Mfg. Co.,
728 F.2d 1026, 1029 (8th Cir. 1984). Under South Dakota law, a jury’s verdict
should not be set aside except in those extreme cases where it is the result of passion
or prejudice or where the jury has palpably mistaken the rules of law by which
damages in a particular case are to be measured. Itzen v. Wilsey, 440 N.W.2d 312,
313-14 (S.D. 1989) (citing S.D. Codified Laws § 15-6-59(a)(5)).

       Our research has uncovered no comparable South Dakota verdicts in alienation
of affection claims. In a recent case, Veeder, 589 N.W.2d at 613-16, a jury awarded
$65,000 in actual damages and $200,000 in punitive damages. Both awards were
upheld. Here, the compensatory award of $450,000 is considerably more generous.

                                         -16-
We recognize a South Dakota jury might reasonably place a high value on the
relationship, but ultimately the evidence of Donna’s pre-affair conduct and her
dissatisfaction with the marriage undermines Richard’s claim for damages.
Accordingly, we conclude the evidence does not support the $450,000 award of
compensatory damages and must be reduced or a new trial ordered. Consistent with
our authority to order a remittitur on appeal, Rustenhaven v. Am. Airlines, Inc., 320
F.3d 802, 807 (8th Cir. 2003), we conditionally affirm the judgment entered on the
verdict, subject to Richard’s acceptance of a remittitur judgment in the amount of
$150,000 for compensatory damages.

     Todd next argues there was insufficient evidence to justify an award of punitive
damages, and alternatively, the award of punitive damages was excessive.

       S.D. Codified Laws § 21-3-2 allows for punitive damages if there is evidence
of “oppression, fraud, or malice.” Kjerstad v. Ravellette Publ’ns, Inc., 517 N.W.2d
419, 425 (S.D. 1994). Malice may be either actual or presumed. Id. (citation
omitted). Actual malice is a positive state of mind, evidenced by a positive desire and
intention to injure another and motivated by hatred or ill will. Presumed malice need
not be motivated by hatred or ill will, but is present when a person acts willfully or
wantonly to the injury of others. It implies the act complained of was conceived in
the spirit of mischief or criminal indifference to civil obligations. Dahl v. Sittner, 474
N.W.2d 897, 900 (S.D. 1991). Presumed malice can be shown by demonstrating a
disregard for the rights of others. Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D.
1991).

       Though not overwhelming, we conclude the evidence was sufficient for the
jury to reasonably find Todd acted willfully or wantonly and his actions demonstrated
a disregard for Richard’s rights. Accordingly, we affirm the trial court’s denial of
Todd’s motions for judgment as a matter of law and a new trial as they relate to the



                                          -17-
jury’s award of punitive damages. We next consider whether the award of punitive
damages was excessive.

       Under South Dakota law, the decision to award punitive damages and the
amount rests with the jury. Schaffer v. Edward D. Jones & Co., 552 N.W.2d 801, 809
(S.D. 1996). “Unless the verdict is so large as to clearly indicate that it must have
been given under the influence of passion or prejudice, it should stand.” Id. at 810
(citation omitted). South Dakota has adopted a five-factor test to determine whether
an award of punitive damages is appropriate or excessive. Id. (citation omitted). In
applying South Dakota precedent we consider,

      1. The amount allowed in compensatory damages,
      2. The nature and enormity of the wrong,
      3. The intent of the wrongdoer,
      4. The wrongdoer's financial condition, and
      5. All of the circumstances attendant to the wrongdoer's actions.

Id.

       The first factor is the amount of the compensatory damages and its relationship
or ratio to the amount of punitive damages. The amount of punitive damages
awarded must bear a reasonable relationship to the compensatory damages. Grynberg
v. Citation Oil & Gas Corp., 573 N.W.2d 493, 504 (S.D. 1997) (citation omitted).
Here the ratio was essentially 1 to 1. South Dakota courts have upheld awards with
a substantial difference in ratios. See, e.g., Schaffer, 552 N.W.2d at 810 (30 to 1).
To the extent ratio comparisons are of any value, this factor weighs in favor affirming
the award.

      The second factor is the nature and enormity of the wrong. The jury
determined this was an intentional attack on Richard’s right to Donna’s affection. A
divorce resulted which also affected the Jones’s four children. Under similar facts,

                                         -18-
the South Dakota Supreme court held an award of $200,000 in punitive damages was
not excessive. Veeder, 589 N.W.2d at 622. Again, however, the $500,000 award
here is considerably more generous than the amount awarded in Veeder. We
recognize Todd pursued Donna, but Donna was a most willing participant and the
marriage was in jeopardy before Todd arrived. We conclude, therefore, this factor
weighs in favor of reducing the award.

      The third factor is the intent of the wrongdoer.

      From intent, we determine “the degree of reprehensibility of the defendant’s
      conduct,” which is viewed as probably the most important indication of the
      reasonableness of the punitive damage award. Schaffer II, 1996 SD 94 at ¶ 32,
      552 N.W.2d at 812 (citing BMW of N. Am. v. Gore, 517 U.S. 559, 575)
      [(1996)]. Trickery and deceit are more reprehensible than negligence. Id. Of
      a more serious nature would be those acts which result in injury to persons
      through indifference to and reckless disregard for the health or safety of other.
      See BMW, 517 U.S. at 576. The most reprehensible from the intent point of
      view would be an intentional malicious assault or attack against a person.

Grynberg, 573 N.W.2d at 506 (footnote omitted).

       “Husband and wife contract toward each other obligations of mutual respect,
fidelity, and support.” S.D. Codified Laws § 25-2-1. “Here the acts are of the most
serious nature as they are intentional towards [Richard’s] marriage with all the
corresponding effects, albeit not malicious.” Veeder, 589 N.W.2d at 622. In Veeder,
the South Dakota Supreme court held “[p]unitive damages may properly be imposed
to further a State’s legitimate interests in not only punishing unlawful conduct but
also to deter its repetition.” Id. (quoting Schaffer, 552 N.W.2d at 813 (citing BMW,
517 U.S. at 568)). We are mindful of the state’s interest in protecting the marital
relationship and find this factor weighs in favor of an award of punitive damages. We
also note, however, Todd has repeatedly expressed remorse over the affair. See
Schaffer, 552 N.W.2d at 813 (upholding an award of punitive damages where the

                                        -19-
defendant expressed no remorse for his actions). Therefore, while some award of
punitive damages was warranted, we are unconvinced the circumstances of this case
justify an award of $500,000.

       Todd focuses most of his arguments on factor four, i.e., the award was
excessive in light of his ability to pay. Todd argues the punitive damage award of
$500,000 is in excess of 20% of his net worth of $2.3 million.6 He further argues the
entire award - compensatory damages plus punitive damages - nearly exceeds his
annual income and represents nearly ½ of his total assets.

      Todd’s annual income of over $1,000,000 is substantial. But the $500,000
punitive damages award represents nearly half of his annual income and nearly 25
percent of his net worth. This factor suggests the award is excessive and favors
reducing the verdict.

       Finally, we look to all other relevant circumstance of the case. For example,
are there other sanctions available, either criminal or civil. Veeder, 589 N.W.2d at
622. Here, we find none. Other circumstances, however, as discussed herein, lead
us to conclude the award of punitive damages was not supported by the evidence and
must be reduced or a new trial ordered. Consistent with our authority to order a
remittitur on appeal, Rustenhaven, 320 F.3d at 807, we conditionally affirm the
judgment entered on the verdict, subject to Richard’s acceptance of a remittitur
judgment in the amount of $250,000 for punitive damages.



      6
       Todd argues the size of the verdict should be compared to ½ of his and his
wife’s combined worth and his wife’s ½ share of their combined assets should not be
subject to the verdict. We reject Todd’s arguments, however, because Nevada law
holds community property is subject to a spouse’s debt irrespective of whether both
spouses were a party to the action. Randono v. Turk, 466 P.2d 218, 224 (Nev. 1970).


                                        -20-
                                         III

       We conditionally affirm the judgment entered on the verdict in favor of
Richard, subject to his acceptance of a remittitur judgment in the amount of $150,000
for compensatory damages and a remittitur judgment in the amount of $250,000 for
punitive damages. Absent Richard’s acceptance of remittitur, we reverse and remand
for a new trial on his compensatory and punitive damages claims.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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