good morning your honour's and may please the court michael who was appearing on behalf of the defendant appellant sit on international as set forth in our brief there are three principal arguments on appeal today any of which warrant reversal of the district court's judgment i'm going to stop you it seemed to me that your brief is premised on a few of the facts that favors the defendant and ignore and you didn't cite reeves vs sanderson the case that controls our review of rule fifty motion plant was terminated for knowingly allowing employees she supervised to make solders in violation of customer specifications mr murphy who the district court relied upon but didn't cite stated if someone knowingly allowed their employees to hand side or circuit boards not according to customer specifications that would be a quote serious violation by her own independent witnesses testimony what she evidence that that had happened in the past and what mr murphy said was there used to be an old boss who didn't follow all the rules now we disagree with that characterization but it's important to note that in november two thousand and seven gregory fare had assumed additional responsibility as the director of operations it is uncontested that he found there were some laxity in terms of compliance with company policies he overhauled all that he met with his manager and mr murphy actually testified he was asked when in the past somebody had make solders or done something improper and more fired was that under gregory fair head no and mr murphy's time at sigma tron overlap with gregory fair had role as director of operations and before break their heads the role as director operation so he would have knowledge that things were indeed different and plaintiff was terminated thirteen months after mr farage assumed that whil there are that that evidence actually supports judging has made a lot because it shows she was not retaliated against jews terminator for cause as her own witness says for a serious violation but focusing on the issue that testimony is the entirety of the testimony regarding the non economic impact on plaintiffs argues are you you're not taking into account the fact that sigma turn put graziano out of work for sixteen months at the very height of the recession or are you actually contending that a jury couldn't take that into account being wrongly terminated at a time  of people are out of work would be an incredibly stressful situation if it were wrongful canted jury take that into account but your honor they would be taking into account nine evidence they would be guessing where is the evidence as to the non economic time here but they believe term jerk juries believe all sorts of things and they believed her fair enough but believed what it was to lie and just dress oh so she didn't become hysterical and i'm not suggesting she needs to be a star but the precedent of this court makes very clear that simply stating i  depressed take the a video matter cited in our brief mr if media testified this court criticised the testimony as being fourteen lines of text no response to a single question where a grown man was brought to tears and described feeling like the sears tower had collapsed on his head this four criticized that an award of twenty one thousand dollars in compensatory damages remitted it to ten thousand five hundred but as your honor just said they didn't question the sincerity of the plan the court said we believe that this brought a grown man to tears but what's important in a video he testified at trial years later about the present impact that that germination had on him so he years later in the court said we sympathize it was unfortunate but twenty one thousand dollars is too much here sometimes there are more sympathetic judges unless the that judges separate cases taken on its own fair enough  but the facts of this case when you won one of the requirements in this is the comparison of the award in this case to other matters when comparing to other matters plaintiff has not brought forth a single case in which under similar facts this type of compensatory damages were was up held in a retaliatory destruction all of the cases that we have been able to find and cite none of them distinguished by the plaintiff awarded far less there have been cases in which there are comparisons for a reason and fifty thousand dollars for two lines of tax in a four day trial nothing else in terms of your mentioning that she was unemployed she was living with her sister before her terminations she continued living with her since she was caring for her nephew and it was rent free there are cases from this court maybe she was saving up to move out but the other man couldn't you know with all your honored you're assuming that but that's not in the record that's the i have with this award it's one thing if she had testified to that it's one thing if her sister with whom she lived with testified to her state of mind during that time or any of her friends or colleagues or if she shared something else as you just said i was having trouble finding a job i was depressed i had there but what else have it's not in the record and so we're left to assume and the jury verdict can't stand based on an assumption and i think that award a fifty thousand compared story that the jur but it sure doesn't sound like a biased jury finding punitive damages in closing arguments and i know the court's position on this i am well familiar juries can do what they want and that was hard but their verdicts must be based on evidence in closing argument plaintiff herself characterize her punitive damages for both claims as having a value of two hundred thousand dollars the jury returned a verdict twenty five percent higher on a single claim for retaliatory distress that was one issue where i noted it seemed to be based on bias it seemed to be perhaps some confusion where they awarded it for simply finding even though they found against the plaintiff the writ on the excuse me the sexual harassment claim but more important in that we're still reprehensible that the award here is three hundred thousand dollars the highest award permitted by statute in the district court in writing its opinion said i can see this is not one of the more egregious cases such as cases citing one where there was threats of physical violence against the pla this case has a three hundred thousand dollars value then what does a case where an individual was subject to racial epithets where individuals threatened with violence as in some of this other case law three hundred thousand for those cases and three hundred thousand for this case where she was simply terminated because the company believed include faith she was knowingly violating customer specify so are you contending that she didn't show that the reasons given by the enquirer for her terminations was f harassing her he talked to another employee to stay away from her because he would be throwing bombs that her p r i'd like to respond to that just your core pointed out that a person fairly high up in the organization manufactured a paper trail to cover up the real reason for the chairman nation your honor that was actually addressed in our reply brief the quote unquote false paper trail mr fair had typed up his no he had communicated and the reasons for the terminations upon doing that mr trujillo at trials that oh i didn't say that to mr fair it was one witness saying i didn't say one thing and another witness saying something else it's not a statute we're going to say a case where plaintiff is threatened with violence is entitled to three hundred thousand dollars and this case is entitled to three hundred thousand dollars that's untenable when you consider the statutory scheme finally that is his exact words wrong he was and he is the general manager of a company for twenty three years in that time was in charge of hiring and firing he had never authorized the firing of anybody ever something like that well actually under your this court's precedents that's quite the opposite there is no obligation to take a preemptive not an application courts obligation if there is even an appearance of bias to conduct a question or session to uncover how deep the biases and then strike a juror for cause if need be the district judge did nothing you know he never said look there he actually said not only that he believes in retraining people that he believes people just leave on their own if they're not happy with their jobs and when the district court said have you ever approved a firing for something other than substance abuse that's performance related  when a general manager can stand before a jury pool and say i don't believe and did you imagine that it was and if the kim when you were choosing the jury that it would be enough to raise an objection for cause but not enough to use preemptory but again not a requirement of this court that is that the forget requirements but your honor is shifting the burden from the district court obligation to follow up with a juror to requiring a defendant to use a preemptory on a juror who appears by if that was the reason given we did it your honor it's document number one forty in the record show and the report found that he would be duplicative and the district court abused its discretion in so fine she relied on mr murphy and mr tru there's nothing in the decision which suggests that the ruling is limited to the precise situation presented there and it goes on to attempt a kind of that exception today the con by citing the supreme court case of unisom feet services versus is more familiar to the court than that i write may be forfeited by the failure to make timely assertion of the right before a tribunal having dressed diction up and this is actually the uniform court quoting an earlier manufacturing manager he had three he could run around with the production floor freely and so he could have seen something in self and decided to be attributed to true he offered whatever reason he could have been defendants witnesses that they had plants all over the world that they sold to all kinds of industries including aerospace and appliances and they had many major customers so you're you are contending that all of that evidence came in through the defendant's absolutely ye so i think that the jury could take into account and use its common sense and render a verdict that would be sufficient to send a message out because the jury also knew these other facts right and my question is why does that make any difference in the degree of reprehensible that he infests retaliatory discharge i think that the facts on which it i'm asking you to explain that i'd rather than just restating it why does that make this more reprehensible because the person who made the decision was a high ranking official i think that one of the goals of punitive damages is deterrence and when you have a high ranking individual involved in the violation in the civil rights violation that a larger amount is necessary  non economic damages award in this case because it is so disproportionate to others that we have seen in our case and i recognize that there is no fix here but it is the role of this court should sort of police the boundaries of what's appropriate and noneconomic damages in these retaliatory just charge cases and this seems to be significantly out of proportion based on the absence of evidence of her non economic loss and the evidence consists of the one statement and if you follow it as a reference i doubt that she was out of work for sixteen months right and she got a back pay a credible award that wasn't you know part of that i don't juries equation i don't think that that there is fully compensatory for the emotional end of being out of work in the height of the recession you don't know what's going to happen next right and so now resumes didn't get it not getting any responses that we'd usually expect some development of that in the record through the plaintiff's herself and explaining the impact of the non economic emotional impact there was corroboration from other witnesses there was more from the plaintiff in that case and i was here in terms of testimony about the noneconomic  i think we have we do have an obligation to maintain some proportionality in these non economic awards yes i know in the end that the award they are that this court affirmed was one hundred seventy five thousand dollars so we're not asking for that the principle that the court stated was that gravity and self control need not be interpreted as a weak case and i'd also like to point out that many  cases that are cited by the defendant are quite old and we've cited authority fayned that court have to take that into account sure that's fair and so looking at all of these cases and looking at the jury made its determination separately i think well there are there is a proportionality factor in that the law takes account of the punitive can't be disproportionate to the punitive damages greater than what you were questioned i can't read the mind of the jurors i think they were all right there had to be something impressionistic in the court going on in the courtroom that explains it i don't know i can speculate that they were offended that mr fair had lied to them was he a bad witness hope that was an adequate and i'm going to let you out this way different one but i think we're talking about the same case but this court said they are commenting on the fact that in their case as in this case the defendant made no argument to the jury about being hit with a verdict much larger than it offered the jury and then if it had offered to jury an alternative estimate of damages to the plaintiff it should not expect the appellate court to relieve it from the consequences of its scheme and that i three three minutes of thought thank you ron thank you so what would a fair not economic award be in this case on our best of the compensatory damages i think the video is very instructive ten thousand five hundred was awarded in that case in which it's twenty years ago twenty years ago but cited by this court just five years ago in the marion county decision as a justification for reducing our award i would say but let's take into account inflation for example is not in the record but the court to take judicial notice of the department of labor statistics the difference between then and now on that ten thousand five hundred dollars board would be sixty it would be a sixteen thousand dollars per day in dollars from twenty years ago but in that case can i remind the court that mr video testified to the fact that he was having ongoing problems years later that does not exist in this case the others don't want to touch upon your honour's is this question of whether the argument the third argument on appeal has been preserved it is absolutely preserved this court's decision believe it's how it's pronounced is very clear the only thing that need be raised in a new trial motion in order to preserve or for appellate review is a challenge to the sufficiency of the evidence the challenge to the juror there was an objection the challenge to the exclusion of the w difficulties couldn't pay utility bills had to borrow money from family and friends fell behind on child support payments and couldn't buy new clothes for his children a company story awarded eighty thousand dollars was permitted in that case none of those facts exist plaintiff lib rent free caring for her nephew and she had two lines of tax this court in a video criticize fourteen lines of tax as being too little