thank you are you got a free opening thank you the court began by excluding injuries consideration if he's of information that the supreme court has repeatedly held to be one of the most important consideration it would make no logical sense and certainly i would think that would you recall stance to have a situation in which the rules of the game are that are applied on appeal are different from the rules of the game if the players are think that they're playing by where they  different jury in her view anyway and i understand a majority in the dresser but in her view as long as the jury understands the constraints and gets the idea that isn't supposed to run hog wild that's unusual case so i'm just wondering well what would the jury have done if they had been told that they're the precise dollar amount of what the claim is to go on the compensatory side what would they know what the first jury did to come up with that number may i jury instruction no additional jury instruction was required that was not constitutionally required but the court the supreme court in fact in state far made it clear that at least extraterritoriality instruction is in fact constitutionally required i was given her a stand but i'm simply saying the same argument the judge crater was making your applies here namely we now know that where there is an important constitutional question at stake that he jury instruction on that is required as it should have been that that that the quote doesn't answer my question those are the suppose that the jury in this case normally is judge because as you pointed out the jury's going to be the same jury so they'll know right they're not going to be told what the amount was so the question is does the second jury get anything more out of the instruction if the dollar amount is put on it than being told that the players were fully compensated it absolutely does for us now you're going to argue that the jury has to be in structure that  we're damages under some theory multiples is that your understanding of what state farm is if it is not quite the argument is that the jury is intitled to him or entitle to have the jury know so that we can argue two things jury worded five hundred dollars you would have been happy then to have that amount put before the jury absolutely and that's exactly right i mean again it's a question of whether the jury should be allowed to consider it and whether we should be allowed to argue  make it clear to the jury what the what are the principles of retribution what are the principles of deterrence and is that as the supreme court made especially third state farm for the whole concern we're not providing guidance to the jury as to what the specifically that the punitive damage award should somewhat be proportional to some extent from the jury to determine based upon the compensatory damages i don't know whether that's part of any charge on punitive damages and i've read actually it i that yes i'm saying that it needs the jury needs to be told that there has to be reasonable proportionality between the punishment that they impose and the harm to the in nevada that they have to be instructed on proportionality is part of the child quite the contrary roger in the vast supreme court prior to state farm had said that proportionality reasonable relationship is something that was not to be considered by not already considered exactly not to be considered at all and even in review of a fugitive damages award and that was in gains for the case and in fact that's the crucial point state farm has obviously overrule it literally makes it's the logical and if you fact i'll go further it's perverse to say we're going to review a punitive damages award for propriety for constitutionality on the basis of these rules but by the way we're not going to tell the ought to consider those factors at all and we're in fact going further what happened in this case we're not even to let the crucial piece of evidence go before the jury not to let the jury hear that factor so that if the jury happens to come to unusual about this case but i take it what you are saying is that it is an abuse of discretion in your normal punitive damages case now anywhere in the united states for a agree that the when the when the court in the third circuit addressed that question it was addressing it as a matter of state law under new jersey law but the court then added the statement that it would make no sense to not have the jury be told about the reasonable relationship and by the way that that goes to what is essentially is a second question which is knowledge should the jury heard compensatory damages but it also should have been instructed that it should find a reasonable relationship should receive that instruction in the levenson case goes to that obviously one can't give a reasonable relationship instruction to the jury if the jury isn't told the amount of compensatory damages i think that you also agree that just want one part of that that has given the jury the full opportunity to understand all the aspects that enter into the concept the recent one is now i'm sorry i might have been clear eyed i would be quite comfortable having the jury instructed on factors that go into reasonable this or that it should consider or may consider in connection with reasonable this but today all we need to discard is whether the jury must at least be told first just pull him out of compensatory damages and second and separate question whether it should receive instruction about a reasonable relationship yes in for both but i see it's only five minutes to go and perhaps with the permission of my colleagues i can move you want to another issue let's assume that the jury knew about the award and of course it's unique because of the nature of this case coming back on we man the first year we obviously knew about it and came down with an award somewhat similar to the second theory but i'm just curious in terms of assessing the issue of ten to one hundred twenty to one hundred thirty to one when you can just educate me that a few things i take that all of the harm here was basically physical and very little was economic maybe funeral bills is that correct that's correct or are are new and that is the most important fact and once we get into analyzing the issue of proportionality and it seems like state farm these other cases none of them really track a situation such as we have here whatever those formulations are just that fact alone absolutely not your honor in fact is that the supreme court in state farm set out a three part analysis of the types of ratios that are allowed  compensatory award would be appropriate in such a situation in that case would you agree that the fifty two million dollars punitive damages would be indicated it would not be you know violate ten to one and nine to one if you had a fifteen million dollar work that would be within the guidelines in fact within i would say the requirements established by planned parenthood based on state farm but you know here you see you have a situation where you have no economic injury at all but if you had you can only get injured then you think that i'm not sure where that would come from the cost of the total cost the recall was twenty two million dollars and in fact we went into great lengths i could with more time explain to the court why the evidence shows that even that amount the it was only reason for telling the jury about the forty percent comparative fault is twofold first of all it it it was one of our arguments to the jury or was to be regardless of the jury that these events were very rare events that it took a it took an occurrence of a concurrence of several factors or for these these kinds of events to occur and this in this very case the point was this would not have occurred had instructions what they were told was that they were told that there were findings by the first jury that were upheld by this court that the mr white left that the truck out there that walter white somehow climbed into the three hundred year old boy somehow climbed into this f three fifty truck that he somehow that mr white left the truck in first gear that the three half year old boy knocked the t the stipulation was not that it could be used the stipulation was that if the district court overruled all of our objections that evidence of the company's net worth would be the two thousand and three the number stay in the two thousand three  balance sheet is what was presented to the jury a redacted version over objection was presented the actual balance sheet showed both the two thousand and three number and the two thousand and two number which was less than half of the two thousand three hundred and i explained to the district court that i thought i should be permitted to use that as well as late they blacked out the or took out the column that showed the year to year comparison correct ok so that was and your argument then is with that what was it eleven billion was the network of shareholders equity that you ought to be permitted to do what with that number ought to be permitted to do several things two column were in the in the exhibit and hadn't been redacted now that would have that's just part of what i asked for and i also wanted the remainder of the financials to come in so that i could show the jury the other portions of the financials that explain why again the just the single number of that shareholder equity which was what would be the relevant in other words what were you trying to get out that this somehow was an exceptional year and that the jury shouldn't look at for number was not worth was what he said he learned when he was undergraduate college that's ok what i'm trying to understand what you're to what you thought you were going to do with it what kind of trial would it have been if your best case was going to be put before a jury you're going to give them an accounting lesson on how ford's finances globally fit into that number and try and limit it down to the truck division or whatever is that what you're trying to do it wouldn't take an accounting lesson i certainly wouldn't use that term  talking to the jury now i would start to simply want to show the jury the portions of the financials in the annual report it says like ford motor company derives its income from a lot of sources that have nothing to do so what if the purpose of damages punitive damages is to punish and to determine what difference does it make whether they're looking at you know how ford gets its money the question is what's going to give it its thing and if that's going to get its attention but the jury that why would they do that legislature say financial condition here's here's one of probably a dozen reasons i can get it suppose that as of two thousand and four in each of the prior three years or four years that ford's network had declined by one half for one reason or another and i started one hundred fifty that it was twenty five and then it was twelve and a half just suppose hypothetically has the case and the same factors that had been causing forward to lose billions of dollars every year for three or four years from both were still in place for example pension plans and unfunded pension plans and so forth that obviously would be telling the jury this company is in serious financial trouble the fact that today it has a net worth of eleven point three billion dollars inducement on the part of this kind of a ruling which is that it would say to sue any company that has a big trial coming up you better pay out a lot of big given this year because if you have a big dividend you're not shareholder equity at the time of trial it's going to be a have a stipulation that it would be permissible for us to use the consolidated balance sheet from two thousand and three in the event the judge hagen ruled that financial information was admissible in the trial we used this document which is p two eighteen on that subject which was the balance sheet toward the bottom it lists ford's trailer equity as eleven point six billion dollars i don't do not believe anything was redacted what occurred was that there's an exhibit to eighteen was the balance sheet a consolidated balance sheet that  was produced by ford in the form that is without a december thirty one two thousand and two curtain call and judge fisher that's my memory but i do not want to swear to the court that that but it any event the real objection from ford is not there was a reaction here if there was one there real objection is that they weren't allowed to put into evidence their annual report and argue from that and let me provide the context for what happened there this was a retrial limited to punitive damage a map there were three witnesses who testified they were all engineers we call to ford engineers and ford called an engineer from the manufacturer of the component part the brake there was nobody who came in and testified about ford's financial condition for could have called someone if they had chosen to as the last act in their presentation of evidence mr whe sought to introduce the annual report and i asked for an offer of proof as to what he intend to do with that introduction of that bear document and he told the court that he wished to argue from it about the matters that he's described to you today and other matters as well such as the fact that ford's lack of profits was due to currency fluctuations and the like well that would be fine if there were someone who came into court and testify about those subjects and i would not have objected if he had brought someone into court to talk about ford's financial condition even though it's clear from the law of this circuit the howard case that net worth information i supposed to be the information that's provided in most of this look at shareholder equity as what constitutes net worth and it's also clear under t x so the us supreme court case that net worth information is that which is usually provided damages case but frankly if you wanted to have somebody come in from ford somebody from the treasurer's office for example to talk about that subject i would not have objected because i don't want to try this case a third time on that issue or by the way of the other issues have been raised by ford in this appeal because these are not issues about which a case should be tried for a third time any of them any of them but he didn't choose to do that what he wanted to do was to have a lawyers argument which which i can't cross examine that i got your honor i think would ok let me go back if i could thank you sir let me go back if i could to the beginning of counsel's argument very quickly and deal with the arguments first of all the first thing counsel told you was that the supreme court has told us that if it could be the case if your hunter and your colleagues choose to say so but let's go back if we could to first principles about why it is that we're talking about reasonable relationship in the first place it all comes out of spent no time at all talking about that today and perhaps we need not i've heard no questions on that subject but the conduct here in this particular case is reprehensible to the highest degree planned parenthood which i don't remember off the top of my head my colleague will answer that question for me in just a moment but if i could come back story to the jurisprudential basis to begin with why did why do we why do we need to provide fair notice i think that's an important concept but for a company that manufactures motor vehicles in the united states such as ford they've known for decades that they may be held liable for a very large punitive damage amount if they behaved very very badly because they have seen themselves and their and their colleagues motor vehicle manufacturers be subjected to very large to damage awards in isolated cases across the country where the behavior has been very bad so they've been on notice of this for a very very long time and the idea that that they don't know that they could be held liable for twenty two to one or sixteen to one depending upon how you look at this case this is just presuppose that this jury would have thought that the first year we had not followed the instruction from the first trial that their award to compensate should be to compensate only and not to punish and if if we would have presupposed that the second damages they know they may be held liable for peter damages they've known that for decades and decades so the idea that this particular defendant does not know they can be held liable for ten or twenty to one i think just does not hold water i was instructed that the first jury was had been instructed the compensation was for compensation compensatory was kind of a safe place you know what the what the second jury was told is that the whites had already been fully and fairly compensated but they were first struck a jury was not told plug in any direction whether or not compensatory damages function to compensate not to the maybe your answer is the joy doesn't go it's all a question of both of you how we can do it without knowing what the actual damages were your honor my answer is simply this there is it is not constitutionally required that a jury be told of the amount you may want to look at your opinion before freelancing i have it here jacket thinking i have it on my freelancing so our promise i want to start with by saying just as inskeep state farm does not require that that charge state farm us nowhere pasch or on the subject of a reason the relationship charge or reasonable is just at all to begin with it's simply refers back to gore on that subject on the issue judge fisher that you just raised and i'm not freelance when i read the language of the court if i may because i think it's instructive on the subject it appears i seventy one at the bottom and the court says indeed while the state complains that its rights were violated because the jury was not instructed that the reason relationship must exist between the amounts of compensatory and exemplary damages the actual instructions approved by the supreme court in has look contain no such explanation the sort of client and i suppose when i kind of come back to trying to help mr white and his family in this case is the question of whether the court is going to decide publicize for the jury i by defense about defense counsel and that is that he has argued that planned parenthood says that the nine to one ratio is the maximum that may be permitted except where the economic harm is insignificant know where this planned parenthood say that but that is that is just not in the case planned parenthood involved a case where this circuit said that the reprehensible it did not fall at the highest rung so that this court determines as the district court did below that this case involves preference ability at the highest rung then it seems to me clear that a greater than one to one ratio would be permitted and they prevailed on a negligence claim for which they were could hope for which there were could be reduced by comparative fault they they prevailed on a failure to warrant claim which their product liability claims under nevada law and the laws of most states you do interest evidence through his engineers the field sort of shows and just as he said here that to this court that this could this kind of an accident could only happen through a bizarre combination of circumstances that would involve some conduct on the part of the driver the jury was not kept in the dark your honor the jury was told that which a panel of this court in this room told all of us a year earlier as to what as to what the operat facts for and from that judge taken in for with the jury should be told if i may if i may come come back for one moment to the argument about bizarre circumstances what the evidence showed was not as to the specific amount of damages should not should not be imposed to protect people in other states or other places which is what we're just getting to the amount that is actually worded what case comes n she applied it came out with that what's your response to under whatever analysis that gets you up to twenty two to one thank you for the question your honor my answer is whatever i'm looking for an answer i would say look at the williams case out of the organ supreme court a couple of months ago which approved a ratio of one hundred to one hundred fifty nine to one depending upon how you do the math on the board to period of conduct that has been you know litigated all across the country so how does if that gets you to thirty to one how do you rank forbes kind of here in that kind of a scale doesn't th the conduct the fort is worse in some regards and its veterans some regards it's worse in the regard that this problem still exists today because the actual problem has not been warned of rollways not been warned  planned parenthood your honor the ninth circuit decided that nine to one was fair or no one was injured and no one was killed then you look over here at this case if you say someone was killed and other people were injured and in terms  peter damage ratio in a case involving the physical harm or death all the nice circuit cases the whole line that we have post post state farm involves an economic harm or threat and planned parenthood of physical harm but no actual physical harm the u s supreme court in their whole line of cases going back to has looked into and over versus and all those cases gore state farm they all involve economic harms so we involving a greater the single digit ratio to a significant degree will withstand constitutional scrutiny what they're saying put it in the reverse line which is some cases well so the question is what cases will what are those cases let's assume that that that there's very little compensatory damages for a four year old i don't know with two point three comes from i know of the new york law that  life of a child is not you know we don't value that it's all economic harm so i don't know where the two point three million comes from but let's assume that it was just fifty thousand dollars that there it's a four year old we don't have an economic  opening argument about the seeming unfairness of a different of a different number for a forty five year old person who dies with and has large economic damages remember her this is punitive damages we're talking about we're not talking about and  really have nothing to do conceptually with the concept of punitive damages so all of these variables whether it's economic calm physical harm as a forty year old or four year old really seems to be arbitrary stuff that we should really place parchment you're taking it away from the defendant and giving it to someone else so the point is the how much more deterrence and punishment than the compensatory damages is needed and that ratio is the question then there doesn't make any promise argues for ignoring basically any ratio a tender one and going to what is necessary to get forwards attention and not kill the forty five year old or a bunch of children who are only worth fifty thousand dollars no because the law does not limit compensatory damages to economic harm and in this very case as we know there was very little economic harm to the name plaintiffs mr mrs white and they got an award in excess of two twice the court said at age four twenty six courts must ensure that the measure of punitive punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general used the language that it must be ensuring the proportionality to general damages and that is the law as of today that should have been applied to this case