time around he filed so that's why i'm here i'm pleased to be here to argue these issues before the court the supreme court's decision in the philip morris the williams makes it absolutely clear and removes any possible doubt i believe that the punitive damage  i'm sure service precise in the jury instruction is formulated for what not but i do think the question at least the question i have is really the jury instruction meant would have to be formulated after williams and what troubles me about both the instruction that you proposed in a district court and seemed to be arguing for in your brief and i'm referring now to y be imposed to punish ford for harm to other parties used for and this is the problem i have with them or for conduct relating to vehicles other than the one at issue in this case know we don't have crystal clear i didn't get that first all clear guidance from williams what i think i know what they're trying to say and when you say the jury should as you did in the district court the jury should be instructed that you can't punish forward in a punitive damage award for harm you say for harm to other parties that's what william who's or her conduct relating to vehicles other than the want to issue isn't that the very nature of the inquiry and recidivism inquiry that if the conduct has been repeated over and over this the district judge and plaintiffs counsel argued plaintiffs cons argued a district judge ruled that state farm did not preclude punishment for third party harm within the state that state farm really only related to extra territorial congo that was very simply  ultimately would hold in reverse for a new trial plaintiffs could have argued that this conduct was relevant reprehensible if they could have proposed an instruction there's nothing wrong with the court's charge the court did not charge joy in correct nothing wrong with the judge's charge especially based on the evidence indicates not to for didn't object to the charges it asked several times for an instruction that would precluded third party harm on page five twenty four at five point three through five twenty harmed the plaintiffs in this case that would have at least told the jury that it needed to focus on the harm to this plaintiff so i think for did more than enough it also objected to the arguments that plaintiff's counsel had made follow motion instruction that i think was well within the ballpark of what the supreme court ultimately held and i think either of those two things were sufficiently served if jack shit and especially when one looks at for going sixty nine of white on third party harm on winds of what suggested ways with some refined we've all learned something from excuse me along the lines of what williamson said we've learned from that we could refine it but also your honor the compensatory damage i see a particular request here in any event but you comment on a little bit about preserving the record and i have good thoughts about that where is evidence in this case of any significance of harm to the nevada when it comes to smoking that's a no brainer we can the soul that people smoked throughout the forty eight or fifty states they had in this particular case it seems to me from looking at the record that the evidence of our really an argument about wrongs to the people within states is overwhelmingly stronger than williams let me give the court an example on pages two and and nine through ten of the additional excerpts of record  p two thirty seven which is in one twenty eight through thirty two the supplemental oxygen records didn't say didn't distinguish where those injuries occurred so the jury there was a significant risk that the jury would have thought those people were  in the williams case that the jury would have known it was represents a guillotine that was being referred to the supreme court flatly rejected that argument your honor on the theory that there was a risk the jury didn't understand the difference between exhibit that talked about the fifty four injuries in eleven hundred incidents should be excluded along with other documents because that relates to third party harm that did not relate to the harm to the plaintiffs in this case the district judge denied back that pres what you've told us today so this has to not only see harm to others but for the conduct relating to vehicles other than the one at issue in this case and i don't understand yeah and maybe on rebuttal you can give me an articulation a proposed jury instruction that says at the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks farm to only a few and a jury consequently make that fact into work and in determining reprehensible ity that's from williams and i don't know how they can possibly do that without knowing about conduct relating to vehicle admissible and i'm not conceding it always will the biggest assuming it was admissible here that conduct with respect to other vehicles and other people could come in for reference filippi the jury needed to be told that the purpose of that evidence was limited that it could not punish for directly that's what william says for its conduct with respect to others and and it's another way of saying you may not punish ford for its conduct to cause harm to others because the only punishable conduct would be that which caused harm to others and i will why thank you chain inspector for the whites i'd like to make three points your honour's if i may point number one which has not been discussed to this is for did not request a williams like charge and point number three is that the way it's council he did not argue to the jury that they should punish for farms to non parties i did not make the argument that the oregon council made organ council the council for the williams family argued about the smokers in the data and how punishment and determinist you may not add damages to protect people or to punish harm to people outside of nevada and in judge they can subpoena upholding the verdict in footnote seventeen else we put in evidence injuries or walter white's deaths and we had reports of those injuries and they were all specifically the people outside of that we had the vague unquote this instruction goes be on the requirements of state farm parenthesis jury must be told not to punish quote action that was lawful in the jurisdiction where it occurred unquote i think well it seems to me that the why why why isn't that i don't understand your point talk for a minute here there's a lot of strength imposed understandably by judge hagen because he was implementing this course mandate an extra target area ali i understand that's what everybody was focused on the question it seems to me is whether by design or happenstance comparisons of the extraterritorial are doing the limitation as you say on what you put into evidence and the instructions as given functionally gave  ford enough of what it would be entitled to had williams been on the books which it wasn't so the question is as i at least as i'm reading the instructions it seems clearly to rule out  instruction you read on the jury looking at evidence outside the state of nevada no doubt about it and so the only question is there any implication either the instruction or any evidence to support supported if the jury somehow thought they could look to nevada injured folks that that ball of potential conflict with williams was either there or wasn't and that's what i'm trying to and i agree with your honor is approaching the issue judge higgins charge was fair both creek williams and host williams there was no evidence of any you know that up in the data citizen who was harmed aside from the whites i didn't argue with my closing you should punish for harms to people outside of nevada i didn't argue use of punishment harms forward because of the way this case was actually tried by judge hagen and by the arguments that were made by counsel and i really i mean i i think it's not it's just simple is that there was there was a williams like charge given by which were charges i believe ten twelve and fourteen nothing in the earth is will use and finally plainest counsel didn't make the kinds of arguments that were made by the lawyer for the williams family up in oregon in the philip morris that's one more thing before i sit down and that is this i know this court is wrestling with this issue and with all the other issues in this case but there is another important issue it seems to me t acting in a way that the jury found to be malicious resulting in the death of of a young child we we had a lot of other people around the country who were injured which goes reprehensibly not to the amount full ways on their own now why isn't that directly applicable to our case why doesn't that say that as a matter of due process in arms to third parties where we don't litigate in that courtroom what those harms the third thirty third parties may have been caused by for example the smoking contest you can argue that there were a million people that were killed the focus for a moment let's assume that there is a constitutional due process violation here in respect to the harms to others charged with the absence of specificity that i and there are a few cases where the harmless paradox in the constitutional context assume that harmless error analysis can be apply notwithstanding this constitutional violation would you agree or general kind of document that fifty four others some of ata how many outside in nevada there's no particular evidence about it good we not if we embrace the concept of harmless error say that in this particular case whatever constitutional violation left and right in nevada and that the jury should in should punish the left no evidence of that i respectfully disagree your honor i didn't know i would disconnect