ensured the court held before a jury may award tonight of damages there must be evidence of an evil mind an aggravated and outrageous conduct moreover because the remedy is only to be awarded in ordinary preponderance of evidence and therefore a doubt that the clear and convincing evidence standard now we submit your honour's that it is impossible to refute record in this case and conclude that arizona's high standards of punitive damages were by not mentioning preexisting manifests manifestations of this condition not mentioning previous driving interactions and not mentioning prior illegal drug use second of all he began seeing a doctor for his benefits and the no absolutely we couldn't have because he didn't file until he did he very cleverly did not file his claim until a few weeks after the contestability period has expired so they paid him and they paid him for eight years but this is paid him without invest without making a determination that he was he had met the test for disability under the policy well yes they received his claims form and his attending physician statement and then it was sort of like oh no i'm not saying it was sort of like all of a sudden after eight years they decided to take a closer look at this this was something that was slowly developing over time there were there with things going on in the claim sided disorder and the sky mia so that was a red flag but again they submitted it to they sent that conclusion to his attending physicians they said no no it's just because we take such good care of him that he's able to puncture so well when retarded now if you watch the tape offense for our interview the one thing he is not is borderline retarded this man is extremely intelligent so the conclusion of that psychologists are yes he once and then in cases and in all of those cases the courts the first two were arizona supreme court the third is this court said you know what this doesn't meet our standard for punitive liability we don't care what the jury found we believe there needs permanent evidence in the file of an improper motive there is nothing in the entire file of this case which is very substantial there's not a single piece of affirmative evidence of mal intent on the part of whenever he's being examined for doctor for purposes of this insurance claim all of that was what was to prompting this company in the file there is no affirmative evidence that they were out to get on that day that they had under advisement and deny that at the end of the trial and if i find i know i'm running deep into my time here because this is such an interesting issue let me just quickly tell you what it is that if his allegations are true dr pitt who perform the i mean and they didn't tell dr pitt that there was personal animosity between these two men and that the credibility of the informant was subject to question nor did they evidence that any of these things were done intentionally with the evil mind that is required under arizona law are there's a serious serious question of burden that they were attempting to by the doctors  reason you can draw reasonable inferences from all the evidence well i first of all you have to look at it in the context of this overall the way they handled it so i think to extent that there is it's possible to try any inference at all that other evidence in the absence of any evidence that that actually was his intent but the man who sent this to dr pitt dr pitt testifying that you know why this is helpful to me this helps answer the questions that i had about inconsistency is in his performance during my interview with him it is it is in me to question whether it was even wrongful to give him th report much less that it was mal intent to do so and what if if if the court will allow me we'll get to that when we get to the expert witness question quickly turn to the excessiveness question i really don't think you should get to that question i really think th state farm a state farm as you know as an insurance bad faith case they held that under the facts of that is which involved a third party bad trait claim in which the company deliberately tampered with the claims file lied to the insured and then told them that after there was an excess product when or if you had better sell a spouse because they wanted going to cover the difference in that case the court said under the circumstances of that case no no more than a one to one ratio was permissible theory as well that's all i think i need to say about that point we've got a pretty extensive list there and i'm future benefits because i am running short on my time here you going to decide that is to you the real question is is insurance bad faith more like the trust passed paradigm or more like the personal injury paradigm we've discussed that in the briefs and  awarded in subsequent lawsuits the final issue i'd like to touch on briefly is the expert issue i mentioned before the basic bottom line there is that the trial church fail to perform her duty under kumho and dauber to test the reliability of the it's to take statements of the plane's witness expert basically he got up there he said all kinds of things that the good morning paper please the court my name is ken friedman i'm just a greenberg's attorney and i was a trial attorney for him as well hell and maintain this morning it's impossible for anyone to look at these facts and of liability under the arizona law despite the fact that the trial court looked at these facts and found liability in nature has unanimously found liability being properly instructed under the standard including clear and convincing including that it must be evidence of an evil mind this is a very factual specific case had gone through trial took about two weeks to get all the evidence in front of the trial it's a a jury can determine the facts of the case but a color larry that axiom is the jury can decide the importance of the facts in the case it's not the court's job to say the jury should have found these red flags to be important the jury is free to say these weren't important and not only that the jury sprit to say we don't think that's what motivated the company here we don't think they were motivated by these alleged red flags that argued on appeal the jury is free to say we think they were motivated by ma verbatim in our brief i'm paraphrasing now mr i know you have worked with him in the past i've worked with people like him and surance companies they tend to believe that everyone's been lingering when that is not in fact the case that's an affirmative evidence that a had been accused of fraud the fraud in people out of millions of dollars and that mr greenberg was a witness against him they knew specifically the animosity the bias and the fact that mr goldfarb had independent problems with credibility they didn't tell a doctor could any of that they told occupy it go far as making these allegations against greenberg go for dr pitt relies on that and doesn't ever hear how bad the animosity is and how much gold credibility should be challenged in their own special investigation report a gold bar the claim file in this case shows everything we get from goldfarb goldfarb's should be treated with suspect and suspicion in not acted upon without independent cooperation with the intel docket that so there is ample evidence where jury couldn't for and in for in this case that there was malice enough to support punitive damages remember in th affirmative permanently in this case showing that they had malice and that's what distinguishes the other cases in arizona they don't balance and weigh the evidence in the cases where they threw a punitive damages in arizona what they find is there's no evidence to support it and if there's no evidence and it doesn't support it it should be knocked out if there's some evidence in some evidence that justifies it no court said as a matter of law those justifications outweigh the allegations of malice no arizona court  ever done that wayne they looked at the evidence and said if there's nothing there well throughout the punitive in this case there is something there very justifications put up the trial these issues were vigorously debated and it's up to the jury during their deliberations to come to the conclusions which they did in this case once you know damages are awar consider their arguments in ruled in favor of mr greenberg on those issues and upheld the jury's award now the defendants are arguing that campbell works the state farm mandates a one to one ratio if you look at where there's a million dollars of outrage is ok but not too clearly and i don't think they want to draw that kind of fine line i think they say there's a presumption of literally if the law is instructed or the jury's instructed correctly and we're only going to take a close look or raise a judicial  thousand eight hundred eighteen decision that you get future benefits that's a citizen has not been roundly criticized or subject to any kind of let me ask you that i don't know arizona law insurance if you know litigation all that well without a reasonable basis it's not a solution just say ok you're back in a position of trust with this company when you go to the mailbox every month you can be sure the checks going to be there this company's been found guilty of wrongdoing that they don't challenge on appeal and it's not of this court to put them back at the mercy of that company remember the benefits were cut off in one thousand nine hundred eighty eight his trial didn't end until two thousand and one during that time he received no benefits if used to sue again it's another three years where he received no benefits the record in this case shows his house was in foreclosure his electricity had been turned off his doctor testified to the extreme emotional distress that he went through his white testify to when he was cut out of benefits he was unable to work his condition deteriorated i don't think it's an answer to say this jury can award future benefits you look back at the mercy of the company and you can trust us to do the right thing in the future in addition in this case the jury asked the question what happens if we don't award future benefits and if you want to rep contract based on the insistence of the defendants they were instructed he would have to file a new claim for benefits and his occupation will be considered that whatever occupation he's doing when he files the new claim so he loses the ability to have a disability claim as a stockbroker according to the company in this case so they have breached the contract they've repudiated the contract and mr greenberg should not have to be at their mercy in the future and there's nothing  in a law we have a district court judge who sits in phoenix who knows arizona law and how the appropriate procedures and give it is terrible thought this is not a case where these issues flew under the radar again that issue was raised pretrial during trial and post trial so it was well explored by the trial court in finally the jury found what they needed to find more likely than not that mr greenberg will never work as a stockbroker again his doctors testified to that it would be imprudent for him to even try to go back to work to such a stressful position so we were the law allows it and we met the factual burden to what you not seen is one hundred fifty to one or five hundred one those kind of grossly excessive excessive ratios and you got to remember this is not a case of a bad paint job or even somebody who worries about an excess verdict this is somebody who contracted to be paid every month in the event in the event she was too sick to work he met that definition he was too sick to work and they cut off his lifeline so you have severe emotional and financial distress that would support a pretty significant punitive damage award i would argue that two point four million is a substantial war but not grossly outrageous that would raise the judicial i graus of the supreme court they  in all these decisions give deference to the right of the state to regulate the conduct through punitive damages for the goals of deterrence and punishment it could be argued that wasn't even high enough in this case because the company doesn't seem to be deterred or apologetic about their behavior in this case they continue to defend it that there was really nothing significantly done wrong in this case they need to hear from the jury and i suppose from this cake or as well that there example this is somebody who was at the mercy of there's insurance company someone they pay premiums for premiums to in the event something happen to them and i think it is more egregious than most the size of the award is not enough to  to raise the issues that state farm or the other cases r one is true i want to touch on even though mr taylor did not this morning is the judge's ruling that dr pitts testimony would be limited in some respects dr pitt was the i any doctor he was not an independent expert for trial the judge ruled if you want dr pitt to testify about his opinion of mr greenberg's deposition skills he should have disclosed in the brief seem to talk a lot about a written report under rule twenty six and i think the better practice would be to issue a written report under rule twenty six if you want to get to be an expert on that subject but the judge's opinion did not turn on whether or not a report was necessary to turn on whether or not disclosure was necessary dr pitt was disclosed early on under rule twenty six that someone is going to testify about the facts surrounding his i mean and significantly right before trial and the final pretrial order the defendant's identify d again few weeks or two before trial as somebody who's going to testify about the i am me and the opinions he expressed in his deposition that would have been the time to raise the issue if he wanted to expand the scope of the occupants testimony they did not do so therefore i think the judge was time tiredly within her discretion to say is limited to what you disclosed it is not improper to keep him from going farther than that in the acknowledging their argument insurance companies based on emotion of the defendant he was restricted from testifying about what the law was so now they come forward and say we gave his opinions but he didn't say what the basis of his opinions were while he was prohibited from sayin the law requires this or the law requires that what judge bolton said is he can talk about what the industry standards are i want to start the jury on to the rest of the law and i think that was the correct ruling on her part so when doubt when mr kelly testified he testified as an experienced insurance professional about what insurance companies do and don't do when they just explain in trying to act in good faith they don't try to buy a slimy doctor used they don't withhold information from their customers things that you think is saying something that is incredible they cross examined mr kelly at length they also were free to call their own expert if they had an expert whose insurance industry specialist who could say they didn't do anything wrong they're free to call th instead they're attacking the verdict and attacking the court's ruling allowing the testimony myst decided by a properly instructed jury during their deliberations the trial court pretrial and post trial i did her job in making sure the process was fair and the jury was properly instructed there is nothing in this case that attempting to bias him that perhaps the best evidence in the case that our intentions were good i and eighty hired a man who was so independent and so distrustful of insurance companies that he would  say at trial that he thought all insurance personnel are out to try to save money on claims that's the man i am that he picked he picked him up on the basis of the fact he had done one of prior i any for that company ok you've made that point so let me the rest well i need to respond to the jury argument point b clearing convincing standard is a high standard it's designed to sort out find that they don't have anything besides that in terms of where's the evidence of malintent that's all they have they want you to infer it from the mere fact that the goal for about education is were provided to back the pet and that allegedly they he had so many things in his statements that were corroborate in the claims file that even a thought even if he had credibility problems it's sort of like a situation in which you say well you may be paranoid but that doesn't mean someone snuck trying to get that he couldn't do it and it was something that was in goldfarb's his interview notes so the point is that to make a whole lot of the fact that they provided the stuff to tackle it as if it was totally fraudulent i mean mathematical there's no mathematical that they want like cases to be treated alike they want more egregious cases to have higher wards and less egregious cases so the idea that you shouldn't compare the conduct in this case to the conduct of state farm and then make a beth cases like it or want to whine and blow cases in racial discrimination and stuff like that is where you get a higher ratio of us under subject of borrowing watch from california i would i would foreclosed in all circumstances our position here is that under the circumstances of this case where he could potentially go back to work there was all kinds of things that could happen and there was no indication that if accurate the instruction was that it would be up to the defendants to decide whether to put him on claiming it was not defendants are not going to put a monkey claim and they're not going to consider his prior occupation as a stockbroker it was a question that was asked when when our counsel didn't have access to the client and it was not sort of your standard jury instruction that's given at the close of all the evidence after the parties have briefed and thought about it so  it's not a quibble into saying the jury made a factual finding that if he was found to be totally disabled and it was a bad case that this company would not put him on claim and would not take   finally under subjective well kelly was told he put in testify what the law is that's a different that's a different point than saying he he's allowed to make up standards with that reference