skis mean the judgment should be reversed for two reasons st the damages awards are grossly excessive the sixteen million dollars award for pain and suffering here exceeds the largest similar case by a six million dollars and as well outside the realm of approved in comparable cases the punitive awards totaling twenty five million dollars are far more than necessary to serve florida's legitimate interests and punishment and deterrence in this case given the number of pending similar cases and the extent to which the defendants have paid compensatory damages in this and other cases the harm suffered by the plaintiffs record would suggest was horrible absolutely there are only a defendants do not contest that however there have been a number of other angle progeny cases in this state involving similar injuries similarly serious injuries by other plaintiffs and this case is well outside the established by those cases the district court had a responsibility here to determine whether the award was supported by the evidence and bore reasonable relationship the amount of damages proved and the injury is suffered and what that means is that the court has to look at what whether the award was within a reasonable range in which the jury could properly operate and this court has recognized in the florida supreme court recognized most recently in  to undertake that analysis it's important to look at similar cases but but the supreme court of florida has also said comparisons are sometimes fraught with danger because of course each case is different and must of necessity be measured in the light of the circumstances to kill your to do it right that while other verdicts and similar cases may be instructive those cases are not dispositive in determining whether a specific verdict is excessive measuring noneconomic damages is inherently difficult the jury guided by its judgment and every day life experience is in the best position to make a fair assessment of these damages right well that's absolutely true but in the same decision the court did say as as your honor pointed out that these other cases are instructive and that it's important to look at whether this case is within the realm or not saying that a case that's a tiny bit above that they may be instructive they may be instructive but they're particularly instructive in this situation your honor because there is a robust body of similar cases we pointed to in our briefs to sixteen cases involving injuries lung injury is in the engle progeny world every award higher than this one was reversed the next highest set of awards there were three of them and they were each for ten million dollars and those cases had very very similar facts to this case in boat right the plaintiff had c o p d for twenty five years he underwent two double lung transplants which had numerous complications including a ruptured colon that resulted in the cost me a bag and smith the plaintiff had a long removed he had radiation therapy he had chronic shortness of breath and lived for a long time so unfortunately these cases do involve terrible injuries but so did these other cases in which ten million dollars was viewed as reasonable compensation and in fact the award here exceeded the amount that the plaintiff requested by six million dollars which is also again not dispositive we're not saying that any of these things are  spositive but certainly an indicator that the award is excessive and that the jury was considering improper factors the plaintiff said i would suggest that ten million dollars is the right amount i think that's the fair and just amount we submit the ten million dollars is the appropriate number and the jury awarded six million dollars more than that now there is a presumption that plaintiffs don't ask for less than i think that the evidence permits they certainly ask generally for more than i think the evidence permits but the jury here awarded six million dollars more than the plaintiff thought was fair as a question on on punitive damages before your time expires your argument and that repeated to not know not the way that we're framing it in this argument it's a corollary of what the u s supreme court held in millions your honor i know the court is my with the williams case the court the supreme court held that the punishment any given individual case has to reflect the harm to that plaintiff the car larry to that is that if you have a situation like this one where you have thousands of pending similar cases you can't you can't impose more in one case the florida supreme court i'm not aware of courts in the circuit you're right that the court rejected it and shot but that's a state court speaking on a federal issue so it's not entitled to any deference in this context this is a federal constitutional issue in addition in chef the court pointed out that our ten are in that case had not put in any evidence of the number of cases in which it was a defendant how would that work in practice you know the tool the court said that the constitutional amount of limit on punishment is not really a fact to be tried by the jury it's something for the court to analyze on review and that's why review of the end of the words is is to know when the court is just seeking to apply the pending cases at the time of trial you would also look at the fact that the conduct at issue here is fully regulated by the f d a and by the defendant's agreements with the state and cannot recur that it was undertaken by people who are long gone from the companies pursuant to policies that no longer exist so you would look at all of those factors the important thing in any punitive damages case as your honor is aware is to assess whether the ward is necessary to serve the state's interest and punishment turns and so we would just submit that twenty five million dollars here against both defendants is not necessarily to serve those legitimate state interests just going back very relative to the compensatory order i just want to point out the magnitude of that six million dollars gap between this case and the next largest case so the average award in a case of this kind and all progeny case involving one disease is about four million dollars so the gap between this case and the next three highest cases is greater than the average amount awarded the total amount awarded to a plaintiff in one of these cases just very briefly on fraud  defendants were entitled to a directed verdict on plaintiff's fraud claims because he did not prove reliance he did not show that he had a misapprehension about the risks of smoking or the addictive powers of nicotine much less that any such misapprehension was derived from anything that defendants said or did might have had to prove individualized reliance under the florida supreme court's decisions in angle and douglas didn't do that he testified that he knew the risks of smoking that he didn't pay attention to cigarette ads that he started smoking and continued smoking because he liked to and he didn't testify that there was anything that he didn't know that would have been remedied by the defendants giving him more information that they said anything misleading to him that he believed then acted upon to his detriment if the court has no further questions i'd like to say the rest of my time for about oh please absolutely so  said this is an individual ward for long injury and so they categorize well lukash was higher but that was before not an angle case and another case that was a cancer cases that deceived into this particular individual has is a living claimant there are ways in which you can test whether something is an outlier this is basic statistics and the way you do it is not  say this one is higher than all the others we've had three hundred dollars plus engle progeny trials and i can guarantee you that one of them will be the highest of necessity and that cannot be a constitutional marker that unconstitutionality kicks in for whichever one is highest because then we're going to have another one that's highest in turn so how would we do it if we really wanted to know and this is something that only the tobacco defendants can do because they are the only ones who have all the information you could take all three hundred verdicts and you could say what is the median what is the mean and most importantly the way the supreme court endorsed in the hazelwood case for employment discrimination cases you could say is this beyond two standard deviations of what the norm is if you were to do that what you would have to take into account it's not just the top and it's the zero awards and that's why they didn't do this kind of analysis because in the ryder case which was argued to this court in two thousand and fifteen judge prior i believe you were on that on that panel that was a case where jury found liability and awarded zero damages in that case it was a challenge based upon incommensurability among various jury findings and the this court ultimately held it was waived but in the course of defending the zero award in that case to back go made the point that as of two thousand and fifteen there had been eight cases in which liability had been found and zero had been awarded the st case that was argued to this court on the judgment was a case involving walker and duke again judge pryor you were you wrote that opinion and i argued the case and i said how can it be that a jury was in an reasonable toward the defendants if they awarded thirty four thousand dollars in two death cases and the court cautioned me and said look that's just the way goes into back of cases there's a lot of variability and i agree with that and in fact not only do i agree with that tobacco agrees with that in their brief filed in the ryder case in two thousand and fifteen authored signed by the same lawyers same firm same lawyers here they said the following non economic damages for pain and suffering a loss of support are widely recognized as being largely speculative they wrote that citing florida case law to that effect then they went on to say this court meaning the th circuit is therefore wary of disturbing the jury's decision regarding noneconomic damages especially when there is evidence in the record to support the jury's conclusion they are not arguing here that there is no evidence that mr kerik good care of and was was harmed clearly not there just arguing the evidence should have been measured in a different way and absent from their brief entirely is judge erickson because the law in florida and the law in this circuit is that special deference is owed not just when the jury has made a determination but when there has been active review by the by the district court judge on a motion for a remitted or and here there was and there were specific findings made by judge erickson which are exactly the findings that this court has instructed district courts are supposed to make  in these kinds of cases and so the argument that this is just too much is one that it belies any kind of proof in this case yes this one is higher than many it is higher than most there are a couple that one could argue are are comparable but then if you really wanted to say it's an outlier you have to examine the zero warts and that's something that they have refused to do even though that was available to them because they have the full range of of trial verdicts available to them they know them they're the defendants if there's no question on that i'll move to the punitive damages on the punitive damages issue the ratio here is one point six to one that's what the supreme court has focused on one six to one is the same as the ratio in seriously which this court just upheld a short while ago it's less in any one single case the big question at least a question that i had or cruel and unusual or or some judgment i think that that is the hardest question in the law of punitive damages and it's one that's been in the background for many many years and the courts have not known what to do with it  the answer could be that there is a constitutional cap on punishment there was a case that went up to the nd circuit almost twenty years ago called in re simon two in which there was a class certified by the district court for a single punitive damages award for tobacco for all cases and that would have wiped it out and the theory of the certification was that there has to be a limit on punishments a let's just do it once tobacco defeated that certification sometimes you lose for winning and there was another case that tried to do punitive damages all at once and get rid of it and that was angle that was angle it would have taken care of this problem entirely tobacco didn't seek to remit that didn't seek to reduce it didn't seek to try to negotiate it down they overturned it on state constitutional no other grounds so they have to live with this they can't have it both ways they can't say you can't do it once and for all and you must do it in every single case and in this case what because of the angle ruling what the instruction to the jury was and what the closing argument by pla counsel was was that this jury could only take into account in punitive damages the heart harm suffered by mr kerrigan and so there was no sense that this was a one and done once and for all type analysis as a as a sophisticated constitutional matter your honor i tend to think that there is something out there that could be done to collectivize to aggregate the punitive damages we haven't figured out as a judiciary but what we know right now in the engle progeny is that they wiped out the claim for collective assessment of punitive damages demanding that it be assessed on an individual by individual cases they live with what they want on the question of reliance there are two elements that have now been established on the reliance part of this especially in light of this court's recent decision and we call it berger sometimes it's called code is now the current name i used coat as the name under which it's reported one is if there is reliance on misrepresentations the  nd is if there is reliance that's established by conduct that would have been different responding to an omission and the florida supreme court has has upheld that distinction for decades it goes back to restatement st of torts that you cannot possibly rely overtly when information is withheld from you and in in this case we meet both standards and the reply brief filed by the by the appellants says there's no evidence of anything at all that's quite wrong so what you have in this case is judge erickson making specific findings that there was affirmative reliance judge erickson in document one hundred and seventy two at page two says there was specific testimony by caravan about the back o company defendants advertising that he saw and which influenced his decision he went on to find decades long pervasive advertising campaign in creation of false controversy and that mr kerrigan smoked filtered cigarettes in response to the ad campaign about this the record fully supports that there was testimony from an expert witness dr proctor who figured out the years in which to back a company started to promote filtered cigarettes and then in which they promoted light cigarettes and what he testified was that if filtered cigarettes were the big push around the time of the one thousand nine hundred and sixty six surgeon journey a surgeon general's warnings and mr care of him testified that he started smoking filtered cigarettes right in that period so you have actions that conform to what he had seen and as the district court said he relied upon that he saw he actually saw these ads and the nd step was that he moved to light cigarettes in the  again the testimony from dr proctor was that that's exactly when to back off started marketing these and care of him testified once again that he saw those as he was aware of those he went over to marlboro lights as soon as they came out basically  seventy one and so you have direct testimony and you have the district court making a a separate investigation assessment of the facts to say that this is correct on the nd point on the omission point there is now law in the florida courts in the dine in case and then picked up by this court in the code case that says in the context of a pervasive advertising campaign what happens there what happens if you just don't know if they say there's no health risk or something of that sort and what this court says is that there's a three part test for this that florida permits an engle progeny jury to infer reliance based on evidence that the plaintiff was exposed to the dissin from asian campaigns exposure and harbored a misapprehension about the health effects and their diff nature of smoking those are the two threshold elements and then the key element is whether the plaintiff would have behaved the same way had he had she in that case knowing the true facts karen judge karen makes a finding on each and every one of these and i want to focus on the last one erickson i'm sorry george erickson yes makes a finding on each and every one and what what i want to focus on the last one because here the testimony is clear is could be and this is before dinon this is testimony back in two thousand and fourteen so it wasn't prepared in anticipation of this particular legal standard and it documents eighty three dollars page ninety seven dollars if you had known how bad the cigarettes would be for you and how hard it would be to quit would you have started smoking started no i never would have started that's exactly the the ultimate test in in the in the cold case now there's an intimation in the brief they don't develop this argument i would have quit smoking earlier or would have quit smoking and he and the testimony is the records replete with efforts every year he made an effort at new years and then at other times to stop smoking and he was unable to go in twenty six when his doctor said he would die within six right the testimony is actually more graphic your honor the testimony is that he had double pneumonia and so he could barely breathe and so he was trying to smoke at the beginning of this and then found it was impossible and that's what finally led him to quit smoking that was the moment where he quit smoking there is an intimation that the code case is so broad that it has to be overruled and that there's subsequent cases  reliance and basically the argument is well if the the question is the pervasiveness of the tobacco advertising campaign then everybody relied because we've all seen these ads and it's an interesting question and we among ourselves referred to this is the caveman question what if somebody lived in a cave and so i know adds in with they be able to make out this kind of a reliance claim actually we have case guidance on this now because in the whitmire case the florida court made specific findings that in fact mr whitmire was in our sense the proverbial caveman that he had never seen these advertisement and and it says there's no evidence of any exposure to dissin from ation ads no testimony connected the scene smoking to the false testimony no connection to any conception about health effects and so i read whitmire and they've they asked for  completely immune to the effects of their multi year multi billion dollar advertising campaigns i find that account of mr whitmire not credible but they persuaded the court so here again they lose by winning because now they have established a legal standard that says if you can prove somebody was the caveman then you can't have this kind of reliance nothing in the record looks like that but they make a couple of things clear one is that imprints evaporates in the face of evidence the contrary another and whitmire shows this but code also recognized is that you can't all the inference gets you is that the plaintiff didn't live in a cave you can infer that he saw ads on here in fact mr caravan testified that he saw ads when he didn't testify was that those ads gave him a misimpression about the health risks of smoking or the addictive power of nicotine and he said that he if he had known how bad or addictive smoking was that he would have never started would have quit earlier he did give that testimony to the end of the trial isn't that enough no it's not enough because he even even if that were credible in light of all of his testimony that he knew the risks starting when he was a little boy at ability to term i understand your honor let's assume that it's completely true he needs to tie that misimpression cosily to something that the defendant said or did it's not enough as degnan which plaintiff allies upon recognize it's not enough to say well the tobacco companies should have told me you have to point to a misimpression that you had a specific misimpression that you had about the risks of smoking and show how that is tied to something that the defendant said or did you can't just infer causation because then reliance would not be an individualized issue as the supreme court of florida said that it was in both douglas and an angle and that's what marty testified that he switched from our roads to marlboro lights because he thought he wouldn't get so much tar and nicotine with the lights and he thought they would help him quit smoking that's right your honor but what happened but it looked at in its entirety that testimony shows exactly why there was no reliance he did get less tar and nicotine he started smoking more cigarettes per day and he quickly switched back to marlboro as full flavored marlboros because he was getting less and he recognized that there could  be no detrimental reliance on that because he didn't stick with lights he he switched back to reds so he said they made him crave the cigarette more and he started smoking two packs a day to get sick well he started smoking more of them are lights and then he switched back to re so something that you smoked for a short period of time even if it was in reliance on ads can can cause your injuries in that way plaintiff never has argued that it did and he never pointed to anything other than the lights descript that made him think that lights would be safer or healthier and as the st district court of appeal said and whitmire it's not enough to just say you thought based on the descriptors that the product was healthier you have to show how you re so the court said lights filters you can't just say i thought they were healthier because they were lights or filters that's that's for whitmire so code in fact shows how this case is very different from the testimony an issue in the coat case so encode the plaintiff testified that having seen ads for for with the marburg man she thought that smoking wasn't that bad and those ads caused her to think that mother was a role for death case it was around i think there was no testimony from evidence here you have a plaintiff who took the stand whether you can or cannot make certain in princes in a case where the plaintiff is not available to testify mr caravan here took the stand and he still didn't identify anything that the defendant said or did they gave him  seems to me be pretty much easier to conclude that there was an absence of reliance in that situation as opposed to we have a livings test i think it's actually the opposite your honor because where you have a living smoker who testifies and his lawyer certainly know what it is he needs to testify in order to survive a directed verdict you have to really look at his testimony and not draw inferences based on the scope of a campaign this man testified that he didn't look at cigarette ads that he wasn't interested in cigarette ads because he knew what brands he liked he testified that his earliest memory was of his father scolding his mother for smoking and he never testified that he didn't understand that cigarettes were addictive so you have a living smoker who is again going to testify everything that he can possibly testify to demonstrate reliance and we submit it doesn't get their code is very different because he she said that as a result of the ad she didn't believe the surgeon general warnings that's the type of testimony that this court has held establishes reliance there really is nothing like that here so saying had i known the truth i wouldn't have started that doesn't tie anything to say you know you said had i known to treat had i had to know just how bad or addictive they were i would have started or would have quit earlier it's pretty close to know because in coach she pointed to specific ads she saw and she said what impression she got from those ads and she said so then i thought the surgeon general was speculating that's very very different that's very specific you're pointing to specific saying i believe those as they said x x made me question the surgeon general's warnings mr caravan testified that he saw the surgeon general warnings and he understood them and that he believed that they were telling him that he shouldn't smoke because smoking was bad for him on the verdicts we didn't cherry pick we gave the court the entire range of comparable cases plaintiff accuses us of cherry picking but they have never pointed to any award larger than this one even in the wrongful death you have a point is some point some order has to be the largest correct but your honor there can't be a one way ratchet it can't be that every award but his response to the one way rest your argument is you're pulling a one way re don't think that the that there is any basis in florida law for saying the north has to be two standard deviations away from the mean to be excessive the florida law cases or quite to the contrary thing i have but seconds now i'm over can finish the florida cases say that you are to scrutinize the comparable cases to see whether the jury is operating in a reasonable range and that's what we've done there is nothing about standard deviations in the remanded or statute or the cases we gave the court the universe of cases there is nothing higher except look x where it was waived and that's the universe plaintiffs have never come up with anything different as always both sides well argued and her