since everyone is here we will dispense with the day calendar judge cup run as who would normally be presiding was not able to come down and so you'll have to make do with me will hear kennedy versus forest pro good morning may please the course isn't i'm sorry this is not working headset judge joe brown speaking again good morning your honor i don't know what's wrong but you still kno appellant supreme force products whom throughout my argument i will refer to as supreme with the court's permission i'd like to reserve three minutes of my time for rebuttal or your honour's the principal issue in this case is whether under congress's strict actual violation standard for claims under section three one one zero five a one b little eye of the surface transportation assistance act judgment as a matter of law should have entered in supreme favor when there was no evidence of the routes that plaintiff appellee michael kennedy would have taken the two truckloads in question on april third two thousand and fourteen mr kennedy brought his claim in this case under section a one b one of the the regulation at issue in the case was twenty three c f r six fifty eight point one seven which prescribes the maximum gross vehicle weight on federal highways congress's actual violation standard requires proof that the regulation would have actually been violated by mr kennedy's operation of a commercial motor vehicle why wasn't the district court correct in saying that under the circumstances in connecticut it's perfectly clear that that's a way that he would have had to go on a state highway i mean connecticut has only so many highways and how else are you going to  truck of that size would possibly go and well your honor there was absolutely no evidence of the highway system in connecticut introduced at trial there was no evidence of the history of routes that mr kennedy or other drivers talk throughout their employment and indeed your honor there was actually a load that mr kennedy talk on april third two thousand and fourteen from the precise origin and destination that was at issue with respect to the third load so clearly there was opportunity for mr kennedy to put forth evidence of the route he would have taken and i think under congress strict actual violation standard that was required in this case the entrance that he may have driven on a federal highway is not enough there needed to be actual evidence of route in the case was the jury charge that he hit that he had to have driven  federal highway yes your honor was jury instructed that they had to make a finding to that effect they had to make a finding of an actual violation of the regulation or honor and the district court implied as judge calibration questioned that there was  circumstantial evidence from which one could infer that that would have occurred you're saying that there's no evidence in the record is that yes your honor there's no evidence of the route that mr kennedy would have taken and in the absence of that judgment of a matter of  round of this sort when we do have that sort of thing in any number of things in all of the drug cases in which interstate commerce is proven by the fact that most drugs are taken briefs we believe that the standard for proving a jurisdictional nexus is less stringent than what congress invision down to the actual violation standard for the cia it's interesting why should a jurisdiction nix's be less stringent then a question of proof in what is essentially a civil case one would have thought that jurisdiction is something that one has establish before one does something else and more strictly on your honor i believe the decisions that we've cited in our brief suggest that the burden of proof on the government in proving jurisdiction is minimal i don't believe if you look at the language of the statute in the u s to the congressional purpose of the statute as well as the second prong of the statute which we haven't discussed yet which is a reasonable apprehension of course that's the other prong which has been but the main basis you're saying that the main bases in this case with the first prong and that's what your problem yes your honor that the claim was brought under the first prong of the s t a there was not a claim brought under the so as i was saying your honor congress clearly sought to enact a stringent standard when it created the actual violation standard it is not enough that the regulation might have been violated or may have been violated every one in this case your honour's agrees that travel on a federal highway was an element of mr kennedy's cause of action in this case and the absence of proof of route meaning the fact that mr kennedy would have traveled on a federal highway with respect to water more of the loads on april third mandates that judgment as a matter of law should have entered supreme's favor so we would respectfully ask this court to reverse their motion dismiss at the close of pla new trial is less stringent than judgment as a matter of law we think and the alternative if this court is not inclined to reverse the judgment of the district court in answer judgment as a matter of law we would ask for a new trial tha thank you your honors may please the court your honor the primary argument you've heard this morning was that there was no bill to speak right and it's certainly on the primary argument you've heard this morning is that there was no evidence of the route that mr kennedy would have taken in specifically that he would have operated his vehicle on the interstate highway system as to either of the loads he refused to operate on the day in question  as an initial matter as we point out in our brief geography it is a matter that's within the knowledge of the jury and susceptible to judicial notice and as the court observed when it up held the jury's verdict these jurors were drawn from central connecticut and it would be within their knowledge to to conclude that one or both of the vehicles that issue would have been driven on the interstate beyond that your honor there was evidence from which it could be inferred that mr kennedy would have operated his vehicle on the interstate mr there were certain statements made by mr kennedy either in the evidence that was presented at trial or actually in the course of the trial to the effect that he didn't want to break the low break the law when going down the road and as we know the that the road in question the the road it issue under the the claim that's been brought here in the regulation was similar and still that statement good actually means that he didn't want to break the law even and driving and just state would it could mean that your honor i agree under the standard issue here we have to construe the evidence most favorably to mr kennedy i believe that and most favorably to substantiate the verdict i think it can be inferred that he was actually referring to the interstate highway system mr kennedy certainly testified that is a trucker who it was his responsibility to have knowledge of the laws and regulations of political to trucking and that was not a fact that was particularly in controversy mr kennedy even went so far as testifying at trial that he didn't want to break the law and when asked which law he thought he would be breaking he replied the overweight law and again the one that's at issue here is the regulation we've previously cited defendant's own general manager mr paganini agreed with mr kennedy's assessment that if he had operated his vehicles that day while he was overweight it would have been in violation of the law so in some your honor there's there was a lot of reference to the road and breaking the law at issue by driving on the road and i think the fair and obvious inference that can be drawn from that is that mr kennedy's intent would have been to drive the vehicle on the interstate highway system you know was this really in front of what is was really on everybody's mind while you're trying the case i think in a way your honor it was so obvious that mr kennedy almost didn't think that he needed to stay specifically that yes my intent was to take interstate eighty four again as the jury did jury did did the jury have to make special findings with three things they did your honor there were four interocular turris two of which specifically referred to operating the vehicle on the interstate highway system  been submitted in the religare he would jury knew that it had to make a finding and the defendant had pointed out what it considers to be a paucity of proof in that regard that's correct and what was your argument to the jury well the argument your honor is similar to what i've outlined here today to you which is that you jurors have knowledge of the roads here in connecticut you can infer what the most direct or not even you have knowledge of what the most direct route between hartford insulting ten for example is which is interstate eighty four and again you've heard mr kennedy reference to not wanting to drive illegal again the thing that makes driving illegal in this case is he's taking on the interstate highway system the question is  violation of the s t a standard differently your honor i illustrated some hypotheticals both with respect to the weight law and with respect to other regulations which show that it's especially in the case of a refusal to drive which is necessarily looking prospectively it may be impossible to show that a particular violation was certain to result because we don't know ultimately what would ha defendant actually cited in its brief a case from the fourth circuit which is translate versus boom which i think is an illustration of that standard here because in that case and that concerned admittedly a different regulation but the one dealing with maximum hours the driver at the time they refused to drive actually had it bend over their hours and the fourth circuit said even if the dispatch contemplate an actual violation of a regulation that's enough and that it strikes us as reasonable that the act was intended to protect drivers from having to begin trips when employer has exerted pressure to violate the rules interstate once he expressed an objection no that's correct your honor there was testimony that there was no company rule that would have prevented the vehicle from traveling on the interstate with reference to other than your client's objection was expressed in the time to the actual damages and i can your honor certainly i'd be happy to so your honor we were when we interpret punitive damages  review of state court punitive damages awards based on common law principles and a big part of the rationale that animated the court's decision there was that this is a constitutional violation it subjects defendants to a known and potentially excessive amounts of damages that's not a situation we have here because the punitive damages were were imposed by congress and kept it two hundred  fifty thousand dollars so defendant knew at the outset exactly what its exposure was here for punitive damages that the actual amount of punitive damages after it was awarded here was the statutory maximum of two hundred fifty thousand dollars which if my math is correct comes out to a twenty one to one ratio i understand of course that there are some laws indicating that typically anything further than a double digit award  raises a question but there's also case law that suggests city each case has to be reviewed on its particular facts and how do i how did we get to four hundred twenty five thousand that was the juries  i understand are in stem how do you explain going beyond two hundred fifty thousand so the jury your honor was not instructed as to the amount of punitive damages that could award it was just instructed that if it found it to be then is is that mean that it's impractical matter if you prove you know you only get two hundred fifty thousand we stipulated and post trial motions with the trial court that we would accept an award of two hundred fifty thousand because that was the statutory max money on it but thank you you're welcome part of i think the disparity with respect to the parties analysis of the punitive damages here your honor is what exactly that the right the federally protected right at issue is here we argue that under the the s t a when read in conjunction with the regulations confers upon commercial truck drivers a right not to operate their vehicle when doing so would violate a rule standing order etc of the the regulations and so by terminating him there was a violation particularly of that federally protected right i think whether the drivers the drivers or the folks who are the closest to the coalition's often times asked to to drive in excess of the hours back when i was a young plaintiff's lawyer we had a multitude of tractor trailer cases where the drivers a different sixteen eighteen hours without any break whatsoever this law attempts to put some teeth into it and allows the drivers and or force a mechanism and not suffer the consequences of losing their employment i agree here and i think congress made that purpose fairly explicit when evidence introduced in the case about connecticut's roadway systems there was no evidence introduced in the case about the distance between one of the locate that the origins of these loads and the destinations of these loads all that mr kennedy relied on was an impermissible and friends by the jury that he must of if he must of you know envision or he must have thought that he was going to go on a federal highway that's not enough again under congress's actual violation standard and i think that's very important for this chord to keep that standard in mind when passing on whether there was any evidence of an actual violation in this case with respect to  the punitive damages analysis that was broached we think that the the primary problem with both the award itself for the propriety of any award and the amount is that  the district court actually utilized factors that instructed the jury the jury was not permitted to consider there was a very specific instruction given at the request of the defendant regarding character evidence with respect to the loads that were overweight on days other than april third two thousand and fourteen and what the district court instructed the jury was that any evidence of that could not be used for any purpose and i underscore any other than to prove that the loads at issue on april third you were more concerned with  supreme force products at the period in question that they were violating the surface transportation assistance acts whistleblower provisions so the fundamental disagreement that we have with the federally protected right is whether it's the  whistleblower protections or whether it's the way regulation at issue we think under call stad the court can only look at the whistleblower provisions of the s t a and cannot look at whether the driver had a federally protected right under the regulation