i'm it please the court i'd like to start out first by saying what i don't believe this appeal is primarily about and that is punitive damages i think instead of first and foremost this appeal is about two other things number one the standard of review and number two the abuse of discovery the issue presented is with regard to the standard of review must reviewing courts and here to apply standards of review to jury verdicts before replacing them with their own and secondly with regard to discovery abuse may a litigant refused to respond to any discovery requests vialli court orders compelling that discovery and then be allowed to criticize a verdict claiming it is not supported with evidence the defendant failed to divulge oh that doesn't mean i'm not going to talk about tentative damages a certainly is an element and it was well briefed and i'll have some comments about it but i think that the issues of standard of review and discovery of abuse are more central to what happened in the courts below first of all with regard to the trial court the trial court must find before it replaces a jury verdict on punitive damages that that verdict was the result of passion prejudice bias corruption and it can only enter a minute or if it is required under your rule the trial court discussed the facts of the case with regard to several other issues and then at the end of the case he made some general acknowledgements about the purposes of punitive damages and after noting the compensatory amount held that an award  damages in the amount of one million dollars is sufficient to punish the defendant and deter others from committing a similar offense their very simply was no finding of any passion prejudice bias and in this regard  million three to four hundred fifty thousand the appellate court said the trial court did not have the power to speculative lee and gratuitously negate the jury's verdict it cannot overturn simply because he or she would have computed damages differently the trial court made no specific findings nor did it determine that the jury verdict was the product of passion or prejudice instead it stated only that it found the damages to be excessive  because the trial court indicated that it did not believe that the evidence supported the verdict the appellate court has no way to review the propriety of the decision and this is the n c illinois trust court speaking the trial court must set forth its reasons for admitting that award very simply in this case none of those elements were present the trial court did not go through and make a finding of passion and prejudice it did not find any support in the record obviously for that makes findings of fact and conclusions very definitely on or in fact that was the holding in the n c l annoyed trust case the their district two thousand and one case that the trial court does have the obligation to go ahead and before it just set aside the jury verdict in supplants it with its own it has to go ahead and give the jury verdict discretion and it can only do what if it finds that there was some sort of passion or prejudiced something that the plaintiff's attorney said something that bound the jury up big and caused them to become inflamed or something and there was simply no no no no mention of any of that in this particular case the only mention was that the court felt that a lower some than the jury felt was sufficient to deter others from doing the same conduct and you have a similar abuse of discretion argument with respect there because i know you have alternate claim for relie almost a one to one basis with compensatory that's exactly right your honor the appellate court invoked the brown versus farkas decision in which and in that particular case you had a contract dispute really between a couple of individuals and then one individual claimed that the other one had sexually molested his daughter and reported it to the reported to d c f s and in that particular case  the the the appellate court said that the one million dollars in punitive was excessive and it reduced it to exactly the amount of the compensatory damages in that case fifty thousand dollars defamation case it is not just a personal dispute between a couple of people in our case you had an employee and frankly this is the third purpose of the imposition of punitive damages and that is to deter others from similar conduct and in our case essentially what happened was the c e o went into a meeting with his creditors knowing that if the creditors found out about all the losses that the company had sustained over the past several months that the creditors would cut off this telephone that he was reselling time from world com and the plaintiff in this action was the c f o of the company the plaintiffs gerry's the vince he had gone ahead and prepared all these financial documents exactly it was financially motivated he did it for his own purposes and i think what the courts would say is what the potential harm is is worth considering and in this case the potential harm is considerable he attacked not just the the plaintiff professionally in his professional capacity as an accountant but he also attacked him personally attacked his family tech his family relationships so while he while as far as as he was concerned he really didn't care about the plaintiff in particular if the plaintiff wasn't targeted but he certainly intended to do this in a calculated deliberate manner for his own financial benefit it's frankly similar to the ford case where you have a drunk driver your honor a drunk driver goes out on the road he doesn't intend to hit anybody intends to get home or whatever but it's the potential harm that attaches to the act that is the most critical factor and how reprehensible that particular act is  court is the state farm versus campbell case and that was a case in which the plight of complaint that the that the settlement policies of state farm were fraudulent to sensually a one million dollar compensatory word was made in one hundred forty five million dollars curative award was made and that was struck down by the supreme court in opinion by justice kennedy and what the justice said in that particular case was and this is cited in the defendant's brief and our brief justice kennedy commented about past punitive damages cases and he said these cases demonstrate that few awards exceeding  single digit ratio to a significant degree will satisfy due process justice kennedy also went on to say that ratios are instructive not  he specifically declined to enter a bright line ratio rule and he said something which really applies directly to our case he said the stated ratios greater than comport with due process where the compensable harm is slight or difficult to quantify but the conduct is agreed just and the potential for harm is great which is exactly what that's correct your honor the compensatory damage was in the summer of eighty one thousand six hundred dollars i believe for emotional distress was that you have the verdict form probably right in front of there think that that's what it was for so the total amount of compensatory damages is eighty one thousand six hundred dollars the jury also awarded two million dollars for punitive damages the trial court then remitted a million dollars out of the two million and that brought the verdict on to a million eighty one thousand six hundred and then the  that they are going to invoke brown and bring the punitive down to exactly the same level eighty one thousand six hundred dollars as the compensatory so sensitive verdict one from two million eighty one thousand six hundred to one hundred sixty two thousand something like that so that's what it was an essentially that's the you know that's the argument of the defendant in this case that oh we only have eighty thousand and in compensatory and we have two million as you know and this far exceeds the ratios of so many of these other cases but if you look in particular at the mathias case which was authored by judge p he says that there is the supreme court did not set out a rule a ratio because it would be on a single digit ratio because that would be unreasonable in the net particular case which was the bed bug case  where i think it was motel six knew it had a problem of infestation and but they didn't want to pay i think it was the five hundred dollars to fear history and they said that upon past punitive damages these cases demonstrate that fuel words exceeding a single digit ratio to a significant degree will satisfy due process justice pozner in the matthias case which came out right after state farm said it in fact approved a ratio of i think it was thirty seven point two to one in the mathias case because and that's the problem with with ratios that medical ratios is soon as it is so if you decide on a ratio a case pops up which falls outside at that range and in this case the courts have recognized the type of case which is likely to fall outside the single digit ratio range and that's the case where you have the slight harm or the difficult to quantify harm and we certainly have that in this case difficult to quantify i mean the plaintiff he doesn't know what phone calls he missed he doesn't know who's talking about him behind his back oh so that's it's a very difficult burden of proof you have to end and in this particular case the compensatory is as i said we're already one thousand six hundred because the distress that it caused the plaintiff was clear there's no there was no question about it in this case he had to move away he moved away from his family while as his girls were growing up it upset his wife and himself if the appellate court actually goes through the damages and sets them out quite well  know in the bed bug case there was five thousand and two hundred excuse me compensatory damages and something like a hundred and eighty some in punitive damages well what the supreme court has said is that there are three three items to consider number one the reprehensibly of the conduct and all the cases agree that that is the number one consideration and should be the number one consideration number two is the ratio between compensatory and punitive damages and number three is whether or not there is any criminal whether or not there is any criminal penalty associated  particular crime and as a matter of fact in the brown case there was a criminal penalty if if you and i think that frankly there's a legitimate purpose social purpose and not discouraging complaints of sexual abuse  authorities and the penalty in that case was five hundred dollars and i think the court took that into consideration when it lowered the the punitive damage of the verdict in that particular case but in our particular case what's most important since there is no criminal penalty that attaches to this and i think this is what the jury picked up on that when employers are in a situation in which they can get out of financial trouble by throwing an employee under the bus i think this jury was saying don't do it because if you do do it it may cost you money and in this particular case this company was losing five million dollars a month this is a multimillion dollar company they were getting time from world com and then they were reselling it in that on the chicago market and they were and the defendant elliott was at the top of this company and the evidence is he had to either put cash into that company or get it or get credit extended so he went to that meeting and they wanted to see as financials they wanted to know exactly what the situation was of discretion your honor that that is it and i don't think those words appear once and that any so this might be a difficult question to answer from your position but as you look i know you fault both the tr you know on the other hand dealt if the court is saying about the trial court opinion well this is this is what it said and we can infer from that that it meant to say that there was passion or prejudice i would say you know if you're saying is is all that happened is they forgot to check that box the passion and prejudice box i'd say that's a pretty darn important box to check and that's his job and that's the job that you all have told him is his job and he didn't do that and if in fact i believe if he would have done that and if either of them perhaps would have done that if they would have gone down that road and they would have recognised in order to in order to supplant this verdict with the substitution of judgement on our own as to what is what is a sufficient amount to deter i think they would have said ok we have to show passion and prejudice was a present wasn't present and i think that's the purpose of a standard of review to require the courts below to go through a process before they get before they jump to the end and substitute their judgment and i think if they would have gone down that road they would have arrived at a different place i would yes this court finally not to remand the case i think that it's appropriate for a reversal and reinstatement in the case the defendant violated court order after court order after court order and he is frankly the cause of his own he's provided himself with the basis of his argument he's saying that that in fact this verdict is excessive and the trial court dealt with that specifically when the trial court said the defendants refused to provide the net worth of their corporation in order to give the jury a guide or a barometer of their well that was the finding of the based upon the by lation of court orders by the defendant thank you discretion standard that that the appellate court may or may not have addressed with the trial court but it seems to me we're also in the same place here in front of supreme court justices and the question is not what case can mr leahy present to this court that would substitute the judgment of the appellate court or the trial court but this case is did the appellate court abuse their discretion in deciding to rely on for example brown versus fark mr leahy and i have a difference of opinion on the characterization of this case and its kind of dichotomous on the one hand mr lee he feels that eighty one thousand six hundred dollars is not a big deal and doesn't even begin to compensate the plaintiff for his injuries even though the jury said that that was fine upon review the trial court judge robert gordon also found that it was substantial and right on as far as compensating  the plaintiff for his injuries the appellate court also did that so i won't i have not as a subject of of this appeal or my response brought up anything regarding the one thousand six hundred emotional distress damages i would say this though it is substantial eighty one thousand six hundred dollars is a lot of money to most average american joes the punitive award as it stands right now is eighty one thousand six hundred dollars the total award is one hundred sixty three thousand dollars i believe that about nebulous damages or difficult to prove damages emotional distress in punitive how do we how do we get any guidelines i have submitted six cases three from illinois three from the u s supreme court brief i'm sorry the first reason is ruth to the supreme court brown versus farkas i believe it was applied because it is by far the most unemployment case we find it's one of the few defamation case in a contract case somewhere in the midst of that deteriorate and maybe when the relationship between the two business partners deteriorated there was this allegation in bad faith to d c fs that mr farkas had finally his daughter or had an inappropriate contact with her i would also suggest vet kind of allegation is really more egregious and egregiousness is important because the supreme i think that tends to actually mitigate the egregiousness of his conduct was it reckless sure i would buy this truly he's analogy to the recklessness of a drunk driver they don't want to kill anyone they don't want to hurt anyone but then get to have no evidence of how much money was lost or gained or there's nothing how did in fact i would say this discovery abuses there were many mr elliott paid the price one hundred sixty three thousand dollars judgment against him of a handle on but there are also presumed in a case where there is no defendant and five hundred thousand is sought for lost wages i'm sorry damaged reputation four hundred twenty five thousand is sought for lost wages a million dollars a sought for emotional distress in two million sutton punitive damages and there's no defendant there and he can't testify and the fences left the only cross examination of the plaintiff in his wife the only two witnesses the jury came back and said this thing has suffered no last week is in fact his wages were not this guy who suffered no damage to reputation what is he suffered in one thousand six hundred emotional distress that is not by the way based on any medical bills counseling bill psychologist psychiatrist i intend to press medication anything like that there was there's nothing tangible and it's a it's a mystery number and what i guess it is the defense is also saying give great deference to the jury at least on emotional distress that makes him whole i did mention justice thomas own case substantial actual damages complained of proven go through how the trial judge abused his discretion in reducing the amount and here well the trial court judge will be subjected to that the appellate court will i mean the  trial at i'm sorry at the appellate level is reduced further to six million and they need unbound vs farkas in other words three million actual six million is the final result in proctor davis that's a two to one ratio that is that is other justices leaning on prior cases and after all that's what we do in england in america we lean on other cases we don't necessarily pick all of them we can't pick and choose what is most on point and a quick read of brown vs farkas or judge wardens decision at the trial court level or the ap outstanding language there for some parameters to give us guidance no one's well known least a twist in the wind plaintiff's attorneys defense attorneys judges justices we read like a little guidance although we also want the freedom to use our own discretion to decide these things so the supreme court has stopped short of a bright line rule but at the same time they've given some hints hey anything outside of double digits as a racial is probably not going to pretty process we submit that  the supreme court is right on that and we submit that there are literally courts first district brown proctor davis well both first district cases judge gordon followed them he felt they both have discretion to do that and whether any of us disagrees are or reading these cases with a set exactly right there i understand what you're saying this earth a trial judge who you know the trial judge listens to all the evidence he he i'm looking now at his opinion he applies brown versus markers he says where two million dollars is out of line he comes out with a rationale he doesn't as mr lay pointed out say anything about pride or passion or prejudice but he makes his determination that it would seem that the appellate court you know just doesn't pick a number out of midair that's why there are standards of review you both said it's about the standard to review the appellate court has to review this order and i would think that somewhere indicate why the trial judge abused his discretion relied on the same case that they really didn't appellate court in this case just say your word determining that eighty one sixes is a fair number of and then a million dollars and moved on it's a good argument and strong argument and that's why my additional proof for relief is that it would be remitted for further instructions we've got a wide disparity between a million dollars and eighty one sent to those that follow these cases well if you are plaintiff's attorney which i am almost all the time you may win one hundred sixty three thousand if somebody says the off color remarks like mr elliot s case joe citizen on the street if you say these bad things about your employees these untruths you could have a judgment one hundred sixty three thousand slapped on you that's incentive this is still very reasonable to accomplish all the purposes of if i could  justice is in the appellate court or judges or the circuit court you must set forth with particularity why you are either finding this jury's verdict excessive a product of passion or partiality or the talking about racial analysis or at least some sort of connection and three the difference between planners awarded and civil penalties in comparable cases going to the degree represents ability to look at four for the factors is this physical  economic if it's physical for example a drunk driving case that's a higher degree of agree just this secondly is there any difference for the health or safety of others mr elliott may have been different but that the health or question about intentional mehlis trickery or deceit what was this was this intentional malice against jerry's than ski or is this some sort of he's an unintentional victim of some sort of the senior trickery at a third party thank you mr because act i just want to address one thing first and that is the issue of whether this is a physical harm or something  else very sincerely believe and i think the evidence proves this is a physical harm this is a man who was forced to leave his family and go down to florida for several years because he had an opportunity for a job down there and he was afraid that if he stayed in chicago that what happened to him might mean that he would never find another job he did it when his daughters i believe were eight and twelve it caused anything that causes the kind of anguish in distress that it causes when he had to have that conversation with his wife about whether or not those those holy false salacious stories were true or not that's physical i think what the supreme court talks about in terms of nonphysical injuries is the b m w case where you had property damage to a particular car where you had the the t x o case you had the  c trust case which is a breach of fiduciary duty but any time you have damages for a motion of distress and you have the facts as you have here is laid out in the appellate court decision that's a physical harm  there was some question about whether or not brown versus farkas mandated a one to one ratio well i don't know whether brown did but i know now that's levinsky does but the decision below does decision below relies on brown and says one to one is appropriate there was no assessment in this particular case of of whether or not eighty one exact amount of eighty one thousand six hundred dollars was an appropriate amount to go ahead and deter other c e o s from similar conduct the court simply invoked brown and what the interpretation was of the slow risky decision below was defamation six in particular uses the word required that remembers are appropriate if they're required and frankly i'd say that's pretty powerful word certainly it's appropriate to r when you have liquidated damages where the jury makes a mistake but where you have an liquidated damages i think that the the remoted or perhaps as less utility in any case yes the court could go ahead and make that determination obviously but what reviewing course do to my mind your honor would be to say whether or not the the decision below was within a reasonable range it's i don't believe reviewing courts ought to be pinpointing amounts they simply ought to say is the range reasonable is the range appropriate in what we had in this particular case was now particular amount that was pinpointed and what we have is a defacto rule a defacto ratio that frankly may infect other cases but the worst problem about this case frankly is here you have a defendant a c e o of a multi million dollar corporation we're not talking about a mom and pop operation out of a garage we're talking about a multi million dollar corporation and the defendant specifically refuses to go ahead and answer any questions about his wealth and then i mean it really mr gooseneck didn't have much to say about it today but it in the brief that's what he  two million dollars is is is is have huge amount well one of the factors that the supreme court has said is appropriate to consider is the financial benefit to the defendant well in this particular case the definition occurred in july of ninety six they had been losing money this this operation was going down hill and it was going to go down unless according to the testimony heat he put an influx of cash in his business or he got more credit and he lied through his creditors by targeting his c f o and he got another year out of this company before it finally went  there are three purposes for punitive damages deter the defendant from future conduct similar to the one in the case punish the defendant or retribution and the third one is deter others from similar conduct well in this particular case whether the jury whether the verdict is excessive with regard to number one and number two whether it's an appropriate amount to punish the the defendant or whether number it's an appropriate amount to deter him from conduct in the future his failure to respond to discovery on the issue of wealth i think prohibits him from making that argument on appeal that in fact it's too much to satisfy to fulfill those particular goals but the first and second goals of punitive damages so really all we're talking about here is number three and that is is that sufficient to deter others and i think that that's what the jury had in mind in particular you know you have a you have a c e o who's got who's got financial troubles and in this particular case he throws his employee and his reputation and his family life under the bus and sacrifices him for his own financial benefit of a company that was losing five million dollars a month goes on for another year or a financial benefit no question about it seen in light of that was two million dollars an excessive amount i don't think so but now you have a no the question is going forward and that's question you will have to look at going forward what sort of a signal does this case send out and it may send out exactly that a defendant who goes ahead and doesn't respond to discovery and then uses that on appeal in effect there was a motion eliminated in this case by the defendants to keep us from talking about the wealth of the defendant and then you have on top of that you have a punitive damages ratio you know while well the c e o may not face all those issues on his way to that meeting certainly his lawyer will afterwards after the defamation a certainly the lawyer will who is who's considering taking the case but but he says he says if you do go ahead and you do cap punitive like this to a single bishop digit ratio you're going to have people who find the courthouse door him in conclusion i just say the conduct was reprehensible the harm that was suffered was physical and personal and the scarcity of evidence of wealth