thank you judge watt for to me please the court my name is the all catch ellen i'm joined today by nicholas fahri i'd like to reserve three minutes for a bottle and i'll concentrate my argument today on the excessiveness of punitive damages but to the extent the panel has any questions on causation of the other elements mr bari is here to address them in this case the jury imposed compensatory damages of one point eight million dollars against crane one of several manufacturers of a specificity containing gaskets that were sold to the navy and on top of that one point eight million dollars the jury then imposed an additional five million dollars against crane and punitive now we believe that decision on punitive was wrong for two reasons first the course of conduct that will that co complains about took place across the nation crane sold these products to the navy all fifty years ago this conduct has been the subject of repeated litigation and massive massive compensatory damages verdicts and many more to come in this unusual circumstance due process carefully circumscribes punitive damage awards for the reasons judge friendly outlined earlier it's hard to determine whether juries will do and their high amount of compensatory damages from these other cases and at that point the deterrence and blameworthiness rationales are weak then the second argument is that just that argument no punitive whatsoever or just for a small ratio no i think i think it is a brief says it page fifty or opening brief i don't think this court needs to go so far as to say no punitive whatsoever i think that it would be pushed toward the one to one ratio that would ordinarily apply when you have large compensatory verdicts under the state firm decision i think my friend is absolutely right that the supreme court has said time and again there's no magic formula you know it's not always one to one by any stretch but it page four twenty five of the state farm decision the court said when there's high amounts of compensatory damages when there's substantial then it should be one to one  exxon vs bakers very good example of this in which the supreme court took down a four to one or five to one award and pushed it down to one to one and for reasons like this due process reasons as footnote twenty eight in their in their opinion said and so that's really i think what we're asking for here the idea that when you have already a large compensatory verdicts of one point eight million but then when you think about the entire tapestry of litigation against crane for this specific conduct  and then you are asking us to perform the state farm analysis which is does the additional amount of punitive damages make sense given the large amount of compensatory says face i think the answer to that question is no in th for this case alone we think that if you just perform straightforward state farm analysis don't look at anything else we think each of the three guy poses failed we don't think the conduct here was sufficiently reprehensible to justify an additional amount of  damage award of this magnitude we think that the ratio of two point seven to seven to one was too much under these circumstances and we think my friend i think essentially concedes the third guy post which is the  comparable verdicts that have been upheld he points to nothing in arizona not just honest bestest but on product liabilities more generally in which you've had such a large amount of punitive damages awarded and so you know maybe to just back up and take a little bit more into the first argument about others judge friendly i think pointed this out fifty years ago this is a very big danger of punitive damage awards that when you have big amounts of litigation and single juries seriatim deciding these things with tunnel vision it poses dangers one danger it poses to other plaintiffs because if you allow verdicts to occur particularly large punitive damage verdicts to occur then other plaintiffs may be out of luck one day because the funds are depleted companies got a business in the like this case is a perfect illustration of this in our brief sight of the ten q that craven crane filed you know last year just last month they filed an updated ten k explaining how much as best as litigation they face they have settled five hundred thirty five million dollars in claims they paid up on a thirty five million dollars one hundred thirty thousand lawsuits have been made against them and twenty five hundred more coming each year as best as is fairly unique because it has latency period a long time before it sets in and so crane expects to have this you know they said in their ten k additional litigation for years to come and the concern that judge friendly was raising and we're going ski is if you allow again any one of these cases to proceed when the jury to proceed in a fairly unfettered way you really do put other plaintiffs future plaintiffs out of luck is it the case that in virtually all of those be i would say would be malpractise but i think it would be you know a pretty unusual circumstance for a plaintiff to file a suit just for compensatory damages absolutely so i think take it from your answer to trafford earlier that you aren't saying there punitive damages so are you saying that we should impose a one to one ratio ourselves i think that you should and i think you should for the reasons that the supreme court outlined in state farm in you know punitive damages a really unusual thing compensatory damages can reach the outermost limit of the due process guarantee and a page for thirty eight justice ginsburg in her dissent called this a one to one benchmark that's a quote from her one to one benchmark and i do think that's the way other courts have appl exxon versus baker is another supreme court example like that and interior you know yes i think that when you have already a large amount of compensatory damages and you're performing the state farm analysis which is unusual it's an analysis that is didn't novo review it's not like other parts in which district courts get massive deference so judge rakoff if you were fortunate enough to be sitting as a district court judge in this paris of the west here in the city and your so in order to show punitive damages here you have to show under arizona law quote defendant's evil hand was guided by an damages must be manifested and they describe waste so given that extremely high standard and given that you're not arguing that they did not meet that standard at least that's what you seem to be saying to judge walke then why doesn't a higher ratio kick in so i'm glad you brought that up to drink up we do think that and our in our brief goes into some detail that we don't think that they have met at least to just award a little bit of punitive damages the standard is here but if you want to hire punitive damages the standard is there they were told it's the high standard for any punitive damage right and you know weak agree that you know is this case comes to the court i don't think that we are saying to you that you should reopen the factual finding that the jury made rather what we are saying is you have to still ask the further question how reprehensible is that conduct under state farm and you do make that argument and i guess most of my questions actually are on that point for your partner you make the straight up sufficiency challenge i think we do i wouldn't put too much emphasis on that for reasons that i do think that at the end of the day i think that this court has to defer under this plant the ninth circuit's planned parenthood decision to factual determination so i think the stronger version of the argument the one that we're really resting on today is when you're asking how reprehensible is that conduct the fact that it's not intentional in fact us not acting with an evil mind and most significantly the jury thinks of that it was acting with an evil mind well we're not again we're not saying that i don't think they ever found evil mind to think what they found was substantial indifference so the value of human life i think that's what the closing is about so it's not intentional in the way that judge raycroft was pointing out i think that state farm says you've got to ask how reprehensible is that conduct and in addition to the fact as we've just been talking about the arizona statute twelve six eighty nine which so i think the jury instructions said that they had to find that korean company acted with an to disregard an apple and correct and there's one other important point about arizona law arizona as an act of the statute twelve seventy six eighty nine which says look you can get compensatory damages when you sell products to the government but when it comes to  damages it's a really different thing there's a very strong shield in arizona that says it's real there's a important public policy interest in making sure our contractors don't get sued and again is you think about how reprehensible is was that conduct and  justify this massive punitive damages award i think the arizona statute really bears on that whether or not you think it squarely applies my friend has some arguments to the contrary the district george the judge said you know the arizona doesn't apply because there was no navy rule that barred warnings from coming in you know that's not in the statute there's nothing like that in the statute and indeed just recently last month the district court in arizona decided on the basis of the statute twelve sixty nine and rejected a very similar argument in a case that it's called creighton versus poultry farms just last month and what that in that case is about is you had a circumstance in which the chickens were approved for sale by the u s d a and the plaintiffs said hate you know you didn't approve of the us you didn't approve the specific injury they didn't have quote comprehensive testing for bacteria and what the district court in arizona said is that doesn't that's what the statute says the statutes of much broader shield against punitive damages liability and we don't allow plaintiffs to kind of slice and dice and pick and say you know it didn't you know you didn't preclude one thing or didn't preclude another rather the general question is was this product approved for sale and our brief takes you through pages forty to forty five a lot of evidence saying these products were approved for sale yes thank you  good morning me please the court i'm brian vero i represent santa coburn and her family we view this case is very straightforward case under the applicable standards of review in the issue resists morning there's no reason on this record to you sir either the juries or the trial courts or the district court's decisions in finding that the award was not excessive and was in fact so let's let's focus on just the straight sufficiency chose because that's really where most of my questions go ok i don't think you presented enough evidence to meet arizona's test it is a very demanding one so help me understand what you think are the most powerful pieces of evidence you you introduced on that well the most powerful piece of  even as late as the sixty's that the quantities of best as fibers that would be released in the normal handling of their product was dangerous to human health right and the only reason that they may not have known and we don't agree that they didn't know then if they didn't know that they should have was that they didn't test they didn't test most gross negligence so that's why i guess what did you have because as i understand it even the most watered down version of the arizona standard is that you've got to show they acted with a conscious and deliberate disregard for the interests of others direct so they had to be subjectively aware that hey we've got a product here that if we don't want people and they just handle it in the normal course it will eventually kill them but we're not going to say anything because we want to put our i don't know what our profits above human health right so what did you have that shows that they were subjectively aware of the dangers posed by their products not just us generally but their product because they knew that their products when used in the ordinary and expected would create dust so i would love it if you could give a record cite for this because i see the testimony that that the plaintiff had all this dust and wire brushing etc but i had a little trouble finding anything that showed that crane knew that all this dust them well i can't top my head without dissin from your can't give a specific citation but that is what was argued to the court that is what was already to the jury and that is what the district court found the district court found that there was substantial evidence to support that finding by the by the by the jury but you can't show us where that was i'm sure you could have taught my head that take a moment here too i mean there's dust i mean we only talked about how dr harvey of cray knew about articles called dust no i understand that there were articles saying dust is dangerous what i want to know is did crane know that these gaskets would have to be destroyed and turned into dust in the regular course of using them of course how do we know that from the record well we know that your client the that there was testimony that the deceased said that's what happened but did crane know that they became sealed because of the heat where is the evidence that crane knew that well i don't know that there's there may not necessarily be direct your argument would be that the manufacture of this kind of product would inevitably have to do course how it had to be treated to be put into operation correct just like a manufacturer of an automobile would have to know how like from my understanding of how this happened that on these ships anyway these gaskets got sealed was there evidence that these ships were the typical way that these gaskets were used as opposed to like a very rare way that they were used in other instances they didn't get sealed because they were know how like how about not in the record this is the ordinary everyday use of these gases and packing there's packing inside the valve there's gaskets attaching all of these things when they when the vows were removed from the system would be scraped wire brushed in order to make the four inches clean so than a new gasket could be placed on there and obviously argument is that in scraping and gaskin scraping and wire brushing that dust was released that dust was jury was told to draw what do you have in terms of i guess expert testimony on i don't even of the expert testimony but crane not only had to know that dust was created in the normal use of the product but also that the quantities of his best us released in that dust would be hazardous to human health right and so what do you have on that point as of the one nine hundred sixty well doctor of broad can testify that the amount of his best is that would have been released from the ordinary scraping that they knew at that time that the dust released from the normal use of their products would be hazardous to you know ok so you're right so but but you could still prove that circumstantially by showing basically that the medical community was on notice here are these published papers right so what do you have a along product in the sixty's what do you have on that in terms of the medical literature well there's the there before that well the most important article is actually the merryweather price that goes back to thirty's and that's specifically refers to gas kets and packing in the naval shipyard context so that's a that's you know that's i mean it's a fiction or it's it's a version of facts that crane offered to the jury that your honor is interested in today that is exactly what the jury reject so what crane is asking what your owner's is doing is substituting this version of facts that the jury rejected in the trial court also i'm just asking you to point me and record cites if  couldn't find a single record cite that backed up the statement you've just made so i mean i don't know all i'm saying is my job sitting here is to try to figure out did you put on enough evidence for much a rational jury could find that particular fact that arizona law requires you to to prove and i mean i was expecting you to be able to recite given that it's that's one of the lead arguments that it makes on punitive damages and it seems like you don't have anything specific to point out i have my briefing is very specific your honor and i  isn't is important here is that the jury found this the district court found this twice found it it was substantial that substantial evidence supported it to the clear and convincing standard as required by arizona law and that crane is now trying to do what it tried to do below which is to offer a completely different interpretation of the facts and a completely different version of the evidence that the jury in a district court rejected and i think under because it's because it's a it's it's my notes which may be wrong but we would have to go back to the actual record says that  offers another type of dust which may cause fatalities among workers that set the record at pages sixty seventy so i don't know that's if i would that's exactly notes but that would seem to be supportive of the yes  exactly what is in my brief and you know your own on the pipe which i can't give you exact pages to the record but that's exactly the character of the evidence that was presented to the jury and it's presented here as to supporting the juries and the  the district court's decisions at this point there's there's you know the other point i would make is that the district court could have on its motion for new trial either wiped out this punitive damages award or reduced it but chose not to and that's because the district court heard to sevens and found that it was evidence of conscious disregard of workers health and safety for this court now to to  the argument that was presented to us which is that given one hundred thousand plus lawsuits many of which i assume the plaintiffs are seeking punitive damages at most the ration needs should be one to one what what your response well i'm response to that number one is that that it's truly not in the record and it is also a you know i can't comment on how many cases have been brought against crane i don't you know i don't you know i i'm sure that they do you know sure you know that i do and i know that there's a reason for  that it's a reason because their conduct in impacted a lot of people and a lot of the families over the last number of decades and this is they're saying this is a reprehensible thing so they're saying that in light of the large number of suits in which people are to be making exactly that argument that it can't be you know essentially unlimited punitive damages assessed in each case well this is a this is a multibillion dollar company number one and there's no issues about you know that's covered with insurance and you know these are broad public policy questions that i think get far beyond the record of this case in come in and make that argument but it doesn't necessarily you know it's we're looking at this case we're not looking at all of the hundred thousand cases we're not looking in you know especially since it's not even in the record we don't know that that's i mean doesn't matter if it's one hundred thousand or a thousand i know it's a more than a thousand and you know that more than yes i do i just the point being that obviously if every jury assessed five million dollars in punitive damages for basically the same underlying conduct right it's true that they sold a lot of product and so there are a lot of people affected but it's the same conduct that each jury is independently punishing him for that at some point the argument is that the due process clause puts a limit on that and what's what do you have to say that well i think i think your honor the way your honor phrases exactly right they sold a lot of product there's a lot of profit that isn't made here and i think that you know to now at this point say oh hey you know you can't you can't punish us for  wrongful conduct because if we did so much of it and we impacted so many people in my mind at this point is almost a it's it's audacious number one and number two it's it's a it's  just a disregard it's further evidence of the attitude that resulted perhaps with this jury that refusing to acknowledge that what they did this rome and that's what the jury's role was in this case the jury found that this was wrong found that it was reprehensible and a word of five million dollars in punitive damages to a family that lost a father prematurely because of something that could have been prevented by simply saying be careful with this product it contains his best this and this could kill you can gave wonderful testimony explaining how important warnings were to workers and how important and how it would change behavior and that's exactly what crane did not do and that's why it should be more than a one to one ratio or why this it should record evidence shows abstention indifference to the value of human life he was not able to point to anything i think in my opening i may have misstated things because i thought you were asking much at friendly's argument about sufficiency evidence who we certainly agree there was not sufficient evidence when it comes to evidence from the one nine hundred thirty s talks about dust being dangerous to be sure but it's just general dust from a specialist and if you look at the transcript of pages fifteen twenty six and fifteen eighteen and fifteen twenty seven those are all pages in which we explain that we had expert testimony that says a specimen general doesn't matter it's this specific kind of a specimen there's two different kinds of fibers this is crystalline fibers not fibers these studies that he's talking about our site fibers and i'm a test our specific type and otherwise we'll just continue preventing it why can't a jury reject that and say that was really conscious disregard for two different reasons one is about toxicity the as are about the other is about dispersal there was evidence that the other kind was far more toxic than this kind those are the records i gave to you and the second point is there was evidence including the navy study in one nine hundred sixty eight which is a page twenty two hundred of the transcript a navy internal memo saying that this used in gas material this quote does not cause dust in shipyard applications so when you're talking about like asbestos insulation on the walls the kind of stuff that stuff spreads in cars it kicks up a lot of dust that's not true about in capsulated gas and that's why we've said all along that nobody was that there was dust all over the place when they were grinding these things so i mean it seems like the jury believed that well again i think you know mr coburn made of thought so but our point to you and you know if that's a failure to war in theory is if you looked at the literature at the time and ask yourself is there anything i mean this is fifty years ago before i was born that these injuries took place i mean ask yourself would they have had a duty to warn and label and all of that when the navy itself didn't think so when there was no will be submitted and moved to the last case on our calendar which is from testament management company versus frank russell company