progeny case after engle progeny case based on the very same types of improper arguments the plaintiffs counsel employed here plaintiff counsel compared my client to a pedophile or a criminal of mrs berger could have quit when she was twenty five thirty thirty five and avoided her injuries and you know she had the information to quit because even going back to when she was a child she had information for just the reason that i'm asking that question is because we said in the united states versus at the fair response rule permits a party to respond or opposing counsel's comments and they say that's all they did and the closing argument was fairly respond to your closing argument right and what that is what they say but this is not fair response fair response might have been well first their response you need an improper argument to begin with and then that prejudice is minimized on the other side's improper argument because you're balancing out here a fairer sponsor might have been and in terms of advocacy you don't blame a child who touches a hot stove because their parents told him don't touch a hot stove but i mean aren't we in fairness i mean aren't we kind of slicing the baloney a little thin here underneath you know within the context of an abuse of discretion standard and we've got a case after case after case talking about how district court judges have all kinds of latitude for managing courtroom proceedings and closing arguments in particular right right any but you also have cases like all state james where a single improper argument where you have been over could not follow the district judges curative instruction well we have in the end a twenty seven million dollar award by the jury which is certainly on the high side alibi or side of progeny cases and you have that they got the fraud question just completely wrong because there was insufficient evidence on fraud yet they knew that fraud was their one vehicle to get to punitive damages to get to that twenty million counsel because that their historian testified that the historical fraud had to catch phrases he used was creating doubt by the tobacco companies creating doubt about the health charges and putting out distraction science now their argument improper argument came when they split closing arguments the only topic of the argue or at the time by plants counsel was a medical question of when mrs berger c o p d manifested was it within the class window it was it in that question they said well what evidence did philip morris bring to you and said they brought you distraction science you heard about that from dr proctor so there is no doubt that he was saying that  was try to perpetrate that same fraud on the jury in the courtroom and that at the time was an argument that was routine and then go progeny cases that since then has formed the basis of reversal  robinson callaway david cohen so this court should recognize that this is not just state and passing argument and the objection was overruled so the jury got the emperor sure from the district court that it was a proper argument so you're saying and i'm sorry if i missed this in the brief you're saying that florida courts of i have reversed in the progeny cases for destruction science and they are creation arguments in closing well it's i wouldn't say those terms  but the argument that's been made and form the basis of reversal is where plaintiffs counsel denigrates to defense of the case and the way that's done is by saying that the same historical fraud you heard about for fifty years of the tobacco companies creating doubt you heard that same thing from defense counsel in this courtroom where they didn't for example prove that it was not c o p d or this e o p was outside of a class window they just tried to create doubt about that and use of burden of proof and so that linking the defense counsels conduct to the historical fraud and there's many varieties of that argument but it's completely insidious because just as in all states the james the the argument that the problem with the argument was that it it made it personal for the jury it essentially said your insurance rates might go up because of cases like this and that similarity makes it personal for this jury that not only you know was all of america subjective storable fraud but in this courtroom you are subject to a fraud by defense counsel and it also it does so in a way that violates essentially or due process rights to prevent to present a defense because saying that by failing to just confess liability we're doing something wrong in the courtroom and then the third type of argument is of course the the calling our behavior sick and disgusting this is not something that was tracting peanut of damages standards such as reprehensible or something like that it was a counsel of a jury knew had tried  you know had that there are many engle progeny cases out there looking at it and telling the jury that this particular conduct was sick and disgusting so for all those reasons we think that we should have a new trial on all issues which would the remaining issues except what we keep the jamma well on fraud alive because that won't be part of the new trial so i did want to discuss that briefing there's not much i can add to judge carr's decision many of the arguments and attacks on his main decision so let me ask you this i know your time is limited and i actually think this is kind of the driver of the case for me anyway this issue is that so i gather that the real question given the way that the  law permits in florida with this you know sort of presumption or inference of reliance in an admissions case which i think is not a radical notion and i think that's how it works in tenby five cases as well right and so given that you've got this sort of presumptive inference of reliance is the question here whether essentially mrs berger in her own testimony sort of talked her way out of that inference testified her way out of that inference rebutted the inference by her own testimony is that the idea that no your honor it's what you have is that for the courts have affirmed reliance verdicts against us where they have said that based on the pervasiveness of the misleading information a reasonable jury and based on the plaintiff's testimony in this case a reasonable jury can infer that the reliance was on the misleading information so that would be for example in a case where you had a smoker say i smoked lights because i thought they were safer and i saw the advertisings that said lights they looked healthy on those ads but didn't i just don't quite hear even say look i mean you know she was i'll give you that she was exposed to the misinformation campaign and that it was you know caused some level of misunderstanding or confusion right and isn't isn't that under florida law guess i mean you know the case that the most recent case i've read seems to summarize this area the law is called dignan or the evening or whatever i mean it seems to account for this inference last presumption whatever and then it sort of ten seems to shift the burden to you to conclusively prove otherwise and i thought the this case boiled down to the fact that the district court concluded yeah that the if there was burden shifting we've rebutted the presumption here however martin is just a reasonable inference under judge carr's reading so i mean it's went beyond that it want to play in federal court  i'm interested i actually think it might apply in federal court i think that you can sort of merge the j m l standard with the florida sort of the way florida law sort of manages the elements of the concealment climb but i'm interested in how it is exactly that the evidence conclusively proves non reliance if you will if you're if we're going to go down this presumption slash inference trail then what is it what is it precisely that conclusively proves non reliance or just i just want to make sure that that is not the federal standard that conclusively proves and that would violate that many case that's not a sort of law where about where have i gotten that that's there wasn't evidence by which reasonable jury could find reliance not that we think possibly disproved that reliance didn't happen but the evidence of that is you've got to take it by pill or li cigarettes fraud saying that whites implying that whites were safer she was asked did you smoke twice because they were safer and said no right i'm sorry to interrupt but i need to ask about punitive before your time is that cigarette designer to rebut claims that we manipulated nicotine or that we made design decisions in order to make cigarettes more addictive in this case we did not call a cigarette designer to testify because there was no peanut damages on strict liability so it's not just the evidence it's the standards so this jury found that found we're liable for an intentional tort and intentional essentially means mimics the punitive damages well for want and they if they wrongly found that which we think they did they were wrongly believing that we already were liable for willfully harming mrs berger when deciding punitive damages on the strict liability tort there's no initial finding of intentionality so you can't just take the jury's finding an intention that already prisoners raise a really dangerous product as we know negli that yes so we'd be able to explain that even if it was defective and here's why we made our decisions so and i would like to reserve so so you'll have your rebuttal time but i've just got a follow up so without you know sort of getting into a dispute about sort of how the inference does or doesn't apply to you that you would agree that the fundamental question in a real and on the reliance element of a concealment claim is whether the plaintiff would have acted differently had she known the full truth right i mean that's that's the bottom line of the reliance on that right well i would put it had she not been misled by the false information from the defendant or the the nondisclosure right i mean if this is a concealment case we're talking about non disclosure right well yes it's non disclosure but it's not failure to warn fine so it's that she was misled because we did something because you fleece is fine and i think we're on the same page so why is it just explain to me why it is even with her answers did you start smoking you know sort of because you were misled no i started smoking because of peer pressure that's the only reason why i just aren't smoking light unfiltered cigarettes because  how they kept loose tobacco out of my mouth my taste better whatever it was that she said that's the only reason but why couldn't a reasonable juror still nonetheless conclude that if she had known that holy cow cigarettes are like really bad for you and really addictive that those considerations might have overcome her personal preferences of peer pressure and personal preferences for loose tobacco out of her mouth and taste but that would be pure speculation there is no evidence to support that notion  we've we've put in our brief some of the awareness evidence but if you had cigarette warnings going on the packs in sixty six changed in eighty five and sixty six sixty nine hundred eighty five stronger and stronger warnings and there's no evidence that she said well wait a second now i have it now and if i had no and that i would have never started smoking she testified she was alive there was none of that evidence so be just sheer speculation ity to act dissolved with mrs burgers that it appears now that a personal representative has been appointed it if we have a motion that shows that they have authority to act for the state then that issue we had been in touch with mrs berger regularly this case went to judgment in two thousand and fifteen and was held during the pendency of graham the last couple of times we've tried to bennett be in touch we didn't get answers at the home we called many times recently and that's when we learned that in fact not only was she deceased but her husband is no longer capable of answering the phone the neighbor had been taken care of a man by the name of bernard cote we went to the florida courts on his behalf and he has been appointed a personal representative we will file all the appropriate motions after this argument we want to confer with counsel to get their approval after the hearing and this will be cleared up in no time florida law makes it possible for personal representative to retroactively ratify everything so i don't think there's any issue for this court with regard to the first deal i think that there was misconduct at the at the hearing but the misconduct was by defense lawyer defense lawyer opened the case by talking about call girls and prostitutes repeatedly in questioning the terms hookers only hookers smokes cigarettes it's not glamorous because prostitutes do it and then in the closing they went back to this theme and they said she knew it wasn't glamorous because her father told her and at that point we said she's fourteen years old she's thirteen years old even when she started smoking and that's an entirely appropriate rebuttal under smith they introduced the theme of the irresponsibility of the minor and we said minors are minors for a legal reason they don't have the authority to make these kinds of decisions on their own that's why you're not supposed to engage in this conduct with the miners second on the all the cases in florida that reversed because of the vilification of the position taken in defense it is the of defense counsel as being part of the conspiracy that the predicate is in all those cases there's nothing like that here it was a comment on the science it was doubt science it was junk science that's what was put forward and there's nothing inappropriate about that and when they tried to blow this up into their saying that we are part of a conspiracy by our defense here the judge judge carr said clearly on the record i don't understand them to be saying that at all and as soon as that was said our counsel straub or moved on to another topic this was not raised again and that's the end of it there is nothing that looks like this is nothing inappropriate in this at all  and i think that that's the these are make weight issues on appeal if i can turn to the cross appeal which i think is that it's the real issue in the case i think judge newsome is entirely right the din made this court in the all state case and again in molina's by said if you're going to disregard the intermediate decisions of the florida courts of appeals and here we have the court rejecting the martin standard openly that stand the burden on the district court is not to say i would do it differently it's to make an informed prediction and all states has some persuasive indication moline advice as persuasive evidence demonstrating that the florida supreme court would reject the standard that's being put forward in the dining case at page four forty of the printed opinion the court the intermediate court in florida carefully goes through florida law on omission cases and it's cites to section five fifty of the restatement which is fraudulent concealment and two a case to case law in florida going back to supreme court decision in one nine hundred forty seven called joyner vs mccullers and the standard from joyner is fraud where in addition to non disclosure the party uses any artifacts to throw the other party off his guard that's the standard it's non disclosure plus any art could reasonably conclude from the evidence here that by not disclosing the scientific evidence by casting doubt on it by and as as mrs berger testified she wasn't sure the surgeon general information was burger that she relied on or says advertising to smoke cigarettes yes there is a part in the transcript where she said i saw the advertisements i rely because of the advertisements i thought i should try other cigarettes and this was has to do with the advertisements that were made about tobacco in the mouth and she does she doesn't conclusively say in her testimony that i started smoking because of peer pressure oh she does yes yes if the question you're at us i thought judge wilson was whether there was anything in the transcript where she says she saw ads and so forth there is not she was very candid she could not s is it the advertising or is it peer pressure that caused her to stars or consider her and her sisters starts organs or grants well if this case had been in state court every state court has recognized that you cannot desegregate the two in the context of pervasive advertising pressure that was put on the testimony at trial was that a child of her age at thirteen fourteen was seeing fifty hours a year of cigarette ads that they were overstatement but i don't want to put i don't want to rest on that it is clear that cheek testified honestly i cannot point to a single ad that influenced me to start smoking that's absolutely correct or two hundred fourteen year old would have been exposed to dozens of hours of these ads routinely on television they could not testify to that but the point i want to come back to is is the point judge a new summaries because in his opinion judge car at page twenty one of tab one fifty five relies on section five forty eight of the restatement to establish the legal standard of what she had to prove and he says she had to prove that some ad she relied on affirmatively five forty eight of the restatement it deals only with affirmative misrepresentations so that i'm selling you a car and i tell you it's a cadillac but it's really a chevy and you have to identify the misrepresented omission cases are different in the dine an opinion goes back to the restatement and says if somebody sells you a car and they back it up against the wall and it turns out the trunk is rusted out and you never looked in the trunk and they never said anything about it that's fraud by omission what statement could you possibly point to in that circumstance under judge carr's tess florida law would reject a fraudulent concealment claim under those that the court was discussing the propriety of a jury instruction and i understood judge card to say yes we have the martin case we have the inference but this this particular smoker has testified in her testimony rebutted that inference i don't read that that's what judge carr said with judge carr said we have martin this may satisfy martin i reject martin i think the florida supreme court would reject martin because it is incorrect and that's where he relies on the wrong section of the restatement to predict what florida law would say since that time for example in the hess case which is a florida supreme court case dealing with the statute of repose the facts in that case were that the smoker could never identify reliance on any advertisement during the statute during statutory period of the angle claim and the florida supreme court said that doesn't matter it's the conduct that continued it's not the direct reliance on a particular advertisement and it's not exactly on point but it sets the standard under florida law that we do not look for the direct reliance in these kinds of cases and omission and i go back to the fundamental eery point that i began with which is these this case would have come out differently if it had been tried in state court and we know that we know that because the putney case comes out differently because dinon comes out differently because martin comes out differently because calloway comes out differently all of these cases rely on the per vase of miss of the advertisements the attempt to create doubt about the health consequences of smoking cigarettes and i just get you to hang on for just a second because i want to make sure that judge wright has an answer to her question because she's got her finger on the same thing that i sort of open the argument with which is you know given the inference that i read out of dine and i think fairly the question for me and i think the question that judge wright is asking you is did this plaintiff sort of talk her way out of it and in addition to sort of casting his lot with martin the  did judge carr did sort of say this plaintiff gave some remarkably markedly candid testimony and you know she said i only started smoking because of peer pressure and i only switch to lights or filters for personal preference reasons and so i then i guess to me that tees up what is the ultimate question which is whether under the federal standard a reasonable juror could nonetheless have concluded that had she known the full truth cigarettes are really bad for you and they're really addictive that information would have countermanded her personal preferences and she wouldn't have smoked or would have stopped and the question is whether a reasonable jury could make that infraction i agree with you and if we look at the state court proceedings what we see is time and again the courts uphold exactly that that outcome so if we look for example at the hess case again there again a candid plaintiff talked his way out of saying oh i saw an ad during this ten year period any coach plaintiffs could have testified oh yeah i must have seen some at the marlboro man something during that ten year period he said no and the court said it doesn't depend upon that because of the pervasiveness of the conduct in the period if we go to the putney case we see that the legal standard that the florida courts are using is whether a jury could conclude that the plaintiff would have behaved differently had she known and the jury saw mrs berger testify that when her sister her twin sister came down with seo p d she then saw the health consequences and tried to quit and could not so a jury could reasonably infer that had she known the health consequences early on earlier on she would mr michael speaks of the surgeon general warnings in one thousand nine hundred sixty six that's a decade after she began smoking and so it's one thing to say oh yes everybody knew but everybody didn't know and thirteen fourteen year old children are vulnerable and argument is as i understand it essentially europe you're applying you're relying primarily on through our rather than federal law this case was tried in federal court and not in state court your honor as this court has said in passing a few times and this is such an elemental point that there's not a lot of case law on this point neither side has been able to find very much yes the evidentiary questions are under the federal rules of evidence and the inferences but evidence as to what and the as to what is critical because the district court said as to the proof of direct reliance as per section five fifty of the restatement that's wrong as a matter of law that's just wrong plain wrong under erie he's using federal evidentiary rule to taint to change the substantive law of florida martin and court acknowledges this had this been tried under martin she would have won the jury verdict would have been upheld because this was a reasonable inference on the omissions side and he and judge car makes a prediction as he must in these circumstances that the florida courts would reject martin in the intervening period not only have we proven him wrong because of putney because of dinon because of all these cases but we see that these cases like the putney case has gone to the florida supreme court and been sent back for the imposition of judgment based upon the same standard that we have that we think should have applied here that standard the diamond identifies most clearly in the florida courts so we think that it's it's not an evidentiary question it's evidence as to what and the as to what under fundamental principles of erie must be decided by florida law i think further that this court in cases like walker and graham and most recently in judge cho flass opinion and burkhardt has said that there should be in the treatment of the substantive claims between the florida state courts and the federal courts in the engle progeny cases that's what all these cases together have have resolved now there were questions about whether they were intervening  federal due process or preemption issues i know judge wilson you dissented in graham but those federal questions are to the side asked of the substance of state law there is no dispute after graham and walker and and  that this court must try to give the same standard as would a pertain in substantively in the fed in the state courts i don't think anybody could possibly believe that after putney after dining after hess after all these cases in the state court system that had this case come up in the florida appellate court they would have overturned this jury verdict it's just inconceivable and i don't think there's any argument made on that score the only punitive damages there's one issue that we want on that is a predicate for punitive damages even under the the district court's ruling that was never dressed and that's the conspiracy claim and in the putney case the florida courts have said that the conspiracy count stands independent of the fraudulent concealment count so even if they're right on that we get the we get we win on conspiracy in putney the facts of record are the jury found against the plaintiff on fraudulent concealment but found for the plaintiffs on conspiracy to fraudulent conceal and the district court said i'm sorry the court of appeal said citing florida law under florida law the conspiracy is a standalone tort and the measure of the damages is the consequence of what happens and the consequence here being the c o p d injury so we would prevail under that even if we do not determination is independent of the underlying claim the underlying claim just simply establishes whether there is sufficient culpable conduct to go to the punitive damages question that question then stands alone that's why the florida court and so for rejected a remain and that would have included a a new trial on the liability question if you look here at the jury instructions you see that the jury instructions on punitive damages have in them every element of the florida statutory requirement for punitive damages the jury made a finding on each of those questions so the only issue is whether the negligence weren't considering those climbed they were considered but they were considering so much more because the negligence in this case is a given under the engle findings so there was nothing the jury had to do there in order to get to the punitive damages question if they found the conduct sufficiently reprehensible what they did instead was they had to go through all the elements of intentionality on both the conspiracy in the fraudulent consumer which is a higher standard so if the higher standard is met a four shiori the lower standard is m and there's nothing more to be done they want to put on evidence that they really were looking out for the smokers welfare when they manipulated the ammonia levels in the one nine hundred seventy s and eighty's that's fine that's fine but that's the angle trial past that the case that talks about district court judges getting cases reversed and thinking wow that appeal had no similarity to what happened when that case was actually before me that the basis for reversal doesn't look anything like what i remember happening and that's was i think it is this is being walked down on the martin road plaintiff's counsel move for reconsideration after the grant of the jane ovi or jama well on both fraud and conspiracy and plaintiffs said you're not following martin you need to follow martin and judge carr did a reconsideration decision is nov eighteenth two thousand and fifteen and said that is not at all when i'm doing i am following martin and what i'm saying is martin allows a reasonable inference to be drawn yes maybe in cases like putney and martin and hess where you have to see smokers where you've got just secondhand testimony about the pervasive advertising and then testimony about what they smoked and they thought lights were safer and all that stuff but not where you have a life plaintiff like here who specifically says i did not smoke any cigarette because of advertising  he says i did not think like cigarettes were safer so i would urge the panel to take a look at that decision before you think judge carr rejected martin and then he says if martin means that every single angle case must go to the jury and be affirmed in the jury ward on fraud and conspiracy then you're i think you're misreading martin but if if that was a holding that you think marc has been that we contravening angle and douglas which came after angle that says these trials are about individual ised issues for alliance they're about the individual smokers not just about the generalized account but that wouldn't necessarily be the result right it wouldn't be that every angle case goes to a jury it's just that the testimony from the live plaintiffs as you say would need to be a little bit different or stronger than what you had here i recognize that judge carr thought it was like super strong and conclusive i think is his word but i mean you might have a live plaintiff who said not just i didn't smoke look was of an advertisement which i think sort of runs to misrepresentation and not concealment anyway but and not just that i started smoking for peer pressure reasons and not just that i switched to lights and filters because i want to lose tobacco out of my mouth but said under no i know i saw the surgeon general's warning message receipt warning taken and i smoked none the less i loved it now that that case doesn't go to a jury right well that so what that is doing is taking concealment and converting it to a failure to warn claim and there aren't very rewarding things here because those are preempted the nature of an angle concealment claim is that we made statements that were false or misleading because they concealed information like a half truth case or act that's the basis of the duty from angle and you mentioned it has case if you read the instructions and has if you read the instructions judge carr gave here it's a half half truth theory and those instructions of course have not been challenged on appeal i do just want to also remind the court judge carr did grant a new trial on the manifest way to be evidence  fallback as he must on the jane ovi decision that has not been challenged on appeal that's of course a different standard for judge card different standard or if you so that's the baseline and on the the new trial of the so for new trial issue i think that has also been waived in their initial brief based one for the fences they said we want the peanuts backed their issues on appeal their headers summary of argument standard if you nothing says anything about a new trial then they come back in their reply brief and at oral argument and say well we want a new trial on the non intentional torts for punitive damages it's too late at that point but our response to that would have been had they made it in their initial bre that if there was a new trial on punitive damages entitlement has to be a new trial then involves the main liability issues as well because you've got it gas product reeks emanation problem where you can't have a second jury reexamining the first findings and that's an issue that from the seventh amendment that does not apply in state court so the state court decisions on that doesn't matter but i think so i think their requests for neutron punitive damages was waived but if this court thinks that they get a new trial in punitive damages in these to be on my body issues as well for all those reasons i would request this court to reverse the entirety of the judgment thank you thank you and that concludes the docket for this morning that quarters in recess until nine o'clock tomorrow morning