seven million dollars in future noneconomic damages let me begin with the reverse and your point that the jury's only determination of the fact in this case was based on california's consumer expectations aware this was an extraordinary accident involving a fiery crash of a tractor trailer a semi truck and the theory of the case was that in addition to the six exit portal's windows in the render on that point alone and just to give the court an example in the school case the california supreme court ruled examples of the kind of defect claims that would qualify in this test it was the the race  crash again don't even have to enquire as to the type of the that is so obvious that in one would be able to make a determination as to whether it's defective in this type of complicated matter where the question was how much safety escape the burning vehicle had there been these extra exit portals and as pointers counsel said during his opening argument his opening statement his closing statement and emphasized throughout the was available at trial this crucial witness was his deposition testimony from earlier in the case and in that testimony he gave testimony that this he saw mr jones standing there in the cab and that if they had he had been able seventy pounds or so heavier than mr carville mr hogan also in his deposition testified that mr coleman had gotten stuck in the skylight and that was crucial because on videotape evidence dumbest demonstrative evidence which we lodged with the court exhibits one of five and one of six that showed that very large men could get up and slept right through the skylight says on page twenty seven we could have gotten so many out of the can i believe we walked up the hill together at some page twenty seven and he's twenty three he says we were face to face like he was bending down to look through the window from page eighty six the evidence will show from my carville that tim showman was able to use his lights he was there bending over bending over at a point in time and then we see him completely over crawling out w were clearly a mistake have to be fairly inconsistent i mean you have to not have to reach to find it interesting was standing there he we were a lot of people together i would have gotten up and i would have used those inconsistent statements and i would have said well you never saw his life did you you don't know if he was standing you don't know if he was able to push himself out of the vehicle using his life do you again i don't think it was intentional here they didn't know this causation if she was going to get the core of the case but the bottom line is these statements were visible that the district judge originally said she thought that they were inconsistent and that they don't need opposed and then changed after the evidence had all come in reversed course and it was extremely prejudicial especially when coupled with the refusal to give the causation instruction again which the that comparative analysis was not appropriate in here this award is larger than any award and that closely remotely comparable case in the history of california it's been a the love letters were introduced into evidence and it's a very sad situation and so i think under those circumstances this is the kind of case for passion or prejudice led to this verdict that which was nearly four times what was requested and i was with the rest of my time today as far as the failure to meet the requirements of the ordinary consumer expectation test relates to the sole decision which we see is good law finding law if there's something about i think that's something that the jury can understand and in fact the judge phillips whose decision i'm sure you've read or commit you to read again so that this was not a case of technical or mechanical detail in disgust are smaller but they're for older people and obviously if you're going to give an award for a lifetime in this instance i think spec consumed was forty three years then you're going to have to measure how much is that for forty three begin with that last point there is no support that has been cited or that i'm aware of in california law for using that sort of per annum calculation on future noneconomic damages it was sort of a controversy over principle even for economic damages but there's absolutely no support truth for the reasons that judge rawlinson was alluding to it's a different circumstance it's a difficult circumstance no doubt but but that framework and i think this is why the california courts have never adopted it it just doesn't fit when you're into this very sensitive area harville could have gotten out under his own power would have been extraordinarily helpful in impeaching that testimony and the other aspect of the inconsistency is that i didn't really focus on the plaintiff's counsel conceded the inconsistency on page two hardens testimony was that he didn't know whether mr hardy has gotten stuck he got stock that would been crucial because then that was the part of the theory that he was already injured and that he'd been injured in the accident and it was the accident itself  the skylight if he hadn't already been injured he could have walked out their theory was he was fine he was all right as he supposedly told mr hart men able to just get up and walk right out that skylight it was a dumb the monster of an exhibit so there's no fire but i fear it was that if his legs had not been injured he would have been able to just walk right out and so that was the theory of trial and he was struggling to drag the mr tilman out of the vehicle and that's why he just couldn't muster the strength if you wasn't stuck that's why he couldn't get him i wasn't because he was stuck so i think you were going right to the heart of the case and would have been very persuasive it would have changed the entire case but it was excluded there was no reason to exclude the evidence and i think you're the benefit of the doubt should have gone to allow freightliner to impeach someone who wasn't there his testimony was being used as the crucial evidence in the case so or every day that is not the standard that defies a much more liberal standard of inconsistency and it would have been crucial evidence and going back to your question or at the time of the deposition plaintiff are going to hinge on that i think you're it would have changed and i think it would have changed the result i don't have to prove at this point that it would have changed the result just that there's a reasonable probability i think it would have your honor he said mr tolman was stopped yeah it was the crucial issue in the case if puts these sorts of awards in the six hundred thousand to two million dollars range that that two million dollar amount would be a much more appropriate award and would be an area that the court could reduce the award to to look at the amount that was requested to make the point you just said it's difficult so the jury does that it's going to things and comes to its decision i think that my point is your honor that that means that judicial scrutiny needs to look to objective benchmarks like the request of the jury like the comparable awards like the fact the fact that this is a case where sympathy and compassion might produce an award it's excessive and it's and it's and unlike economic damages where there's a specific you can look at the numbers here we need to look at these of other objective benchmarks all of them point towards this being in excess of the award and two million dollar ward would still be one of the biggest economic damage awards in california history in this