thank you good morning your honor may please the court my name is linda martin and i peer today on behalf of the appellant pepsico and the main issue in this appeal is whether the district court abused its discretion and denying pepsi's motion for a new trial based on a highly prejudicial and improper closing argument by the haskell counsel that ultimately affected the outcome of this case the case before the district court was a business dispute between sophisticated commercial counter parties asserting competing the objections were made to the flies that had been exchanged in a reciprocal exchange the night before those essentially or a script and a roadmap to what the script was going to be the next day and those objections included things that went beyond the record closing the closing took place as and minutes after the objections were definitively overrule and lloyd the american airlines there were objections made to an expert's testimony about an hour before closing and that was sufficient it was held you didn't need to that objected during closing in fact that can bring its own prejudice and also draw for further attention to those misstatements when you're forced to object during closing here it was just minutes later and that has been he to be sufficient to preserve the objections and not have to object again when they're made during closing so it is your position that none of these matters are subject to the player review because the objections were all improper actually i mean they did talk about that i'm kind of interested because we always let people be cross examined based on the fees they charge based on whether or not they've testified so captive lever one side or the other but they went beyond and said that she didn't even know how to do math that she didn't know what an average was and she's actually highly trained and very well aware of what averages are and how to do math so it wasn't just the one hundred and fifty dollars an hour but even if there was any question about whether there was a gap in one aspect of the sections that had been made to the closing size and whether that covered everything one in the heat and moment one doesn't need to be perfect in one's objections but also we would give an eighty plus statement but i do want to give you some examples of those the courts your honour's are not supposed to look at each specific statement and isolation of whether that specific statement was made it's the cumulative impact of the prejudice that is  and here that cumulative way that prejudice that was created was overwhelming in bringing about bias and persuading the jury with people he said were mahaffey employees and their family members all wearing the have to hire counsel also took a number one trial exhibit and correctly described what that number referred to by showing it to the jury on a slide called one billion dollar going beyond what the direct testimony had been and what that had been used for but it was referring to revenues that came into the entire pepsi network so all of the various pepsi bottle or including the hasta so at dollar general how much was rung up in sales at those examination is not meant to go beyond what the direct examination was well that's true but once an exhibit is offered and received without limitation is it not fair game to argue it else and then to go on and use that as a way to compare revenues of two entities it's never proper to invite a jury to render a verdict based on the competing revenues and relative size of wealth the two parties expressed really argued that it meant something other than what the evidence showed it meant that's arguably a different matter that's why i'm asking did they did they were expressly claim that they did they refer to pepsi's one billion and he said specifically i've been involved in this case for a long time and cannot understand why pepsi would rather have dollar general south coke and stores to accomplish these goals this shows him our counsel also vouched for the those so it was clear to us at the moment that the court was allowing this to be done in fact you said i believe it's fair argument to go forward and make these statements so this wasn't the specific that you brought up attack that was objected to when the sides were shown but it was more of that place i mean sure if that's the case although it is clear that the analysis is not meant to be on every single statement i was that specific statement objected to it it's meant to be is there a cumulative prejudice here that completely creates bias prejudice confusion for the jury and therefore results in a trial that is prejudiced against pepsi in this case and we do have cases there is what i'm wanting to  about pepsi's counterclaims last couple pulled the jury they were bogus fake made up a bunch of smoke and mirrors and they may have sounded good and pepsi's new york office at the pepsi came here looked at you in a jury and said we can do whatever we want given the jury the power response ability for correcting injustices concerning punishment and deterrence as an element of compensatory damages which is all that was here saying that counsel invented accusing his adversary calculated intentional malice and again and went back to the th circuit said that sufficiently problematic even standing alone to warrant reversal but here again i cannot overstate the cumulative impact of  prejudice here and under the four factor test these were not mere aberrations they were reflected a deliberate strategy there was no curative instruction just a standard instruction where the degree of of you don't need to continue objecting on the record and deserving each time the trial court held they were fair argument even if the house was stretching the record so he was allowing these to be made the size of the verdict here only twenty four thousand dollars objections to haskell's closing sides deserve the issues for appellate review the just court will rule those objections and mccaskill has not explained to the court and that's why those rulings were not definitive or why pepsi was obligated to reassert them just minutes later testifies in and her she testified to the people in new york and she said that he much she said the people in new york didn't understand what the price of oil so there was pepsi received a one billion dollars in revenue from dollars raised the question raised the question about john storch testified that it was a pepsi employee about whether that was really an accurate and i'm like what about what about sending a signal you know what is what is when is that ever proper argument it's it's i mean if there is no me just there's no reason to punch there's no reason to send a signal that's no reason to have two to talk parties outside the parties before the court i mean if that seems to me to be to be in the improper argument if you when you read the closing argument  positions of the record are so forth it disrupts the closing argument and arguably prejudice is the attorney us to make all these objections why isn't that a practical concern need to practice ourselves further by objecting during the closing arguments mask of counsel for the rest of what it was doing and under harrison the purty brothers another eight circuit case we did not need to object again to the intensive argument mistrial and we sufficiently therefore preserved the right to bring a motion for a new trial mascot did succeed in prejudice in the jury and we got a glimpse of that when the jury asked during the trial during deliberations i'm sorry quote if the jury  find that paragraph eight reimbursement requests were overstated and that was one of pepsi's counterclaims would that be considered an injury to pepsi so this shows at minimum it was a close case under ventura that's the standard it cannot be  statements did not accomplish the purpose that they had set out to accomplish here that was to minimize any damage award that was provided against pepsi so the jury very well seems to have been persuaded or could have been persuaded the pepsi had proven its claims but awarding the full amount the pepsi claimed to risk putting the haskell and its employees supposedly sitting in the gallery out of jobs and out of business and for a one billion dollars company like pepsi but a twenty four thousand dollars verdict anything more than that would that be even millions of dollars  s would that be any damage to pepsi that was the gist of the question that the jury asked under this court's precedents silver quite and you do not analyze the prejudicial impact of each of these statements in isolation which again is exactly would have your honour's do rather it's the cumulative prejudicial impact of the remarks and here that cannot be overstated for these reasons pepsi requests that it