we have addressed the merits and why a judgment as a matter of law should have been granted and urge the reversal in dismissal of that basis but given the significance of the legal issues and particularly the financial issues to my client the argument will be focused on puter damages the jury's verdict was grossly excessive of punitive damages it was fueled by passion and prejudice now the district part of the difficulty with the district court's opinion is that it never comes out and says that judge holmes doesn't say i find this decision to be grossly excessive and violate due process for these reasons the focus of the district court's opinion is on why he believes punitive damages were justified in that case well isn't he in effect putting a probability on the potential because he does make findings he particular reprehensible what the and he does describe the he's referring the evidence presented at trial he says the physical harm that could have resulted would have been substantial is enough that putting a probability on the potential harm which the supreme court says can be done he is not over them the standards or the potential harm argument that we kind of arrange in the briefing is whether the harm is likely to occur and i submit likely to occur of the intended conduct of the defended and none of that is present here judge holmes does not attempt to quantify the harm of stablish what the likelihood of it is all he does this refer to the possibility of substantial physical harm and i think that a review of the record shows that he is wrong on that than but certainly he never reaches the issue of the likelihood of potential harm to justify a departure from what we know to be the objective standard for constitutional review puter damage wasn't there there was x per testimony that monoxide leak or inexhaustibly hand under some circumstances leak into the cabin of a car there was no testimony that that risk was present in this case it was presented as a theoretical possibility of at some point in the future but with respect to this car and the evidence presented mr easton never testified that it posed a significant risk at that point or at any time in the foreseeable future or what the likelihood would be was there any counter evidence that sat from firm your client that wow there's with this particular car there's no way any of those bad things could of happened no because my client had no knowledge of the potential for that risk so then don't we don't act don't we have to take that expert testimony at face value without any counterevidence from your client diffs i agree you tell you expert testimony have face value yes sure now crack the expert testimony does of chin the bar a few will to potential risks was it ever communicated to the the food it that that was a risks the answer is no of their only three witnesses on this point neighbors sloan and gas neighbors know no it was asked that servile twice during the direct examination mr sloan testified he had no knowledge that that was a potential risk of harm with a district court addresses that he says the jury clearly found sloan testimony not credible and the next sentence says the record supports in inference us over star and more particular shmona new of a fuel leak or then he recklessly disregarded obvious indicators of the problem this behaviors particularly reprehensible moment and that the jury could have concluded that mr sloan was not credible on the gasolene plea that you got to do it over over a view of these guidepost of the reprehensible posts and so that necessarily includes an awarded compensatory damages or fraud only with respect to the cost of the repair of the exhaust for the cost of the repair of the ghastly the jury's award did not include mr  deli's paid for repair of the gas a legally there's nothing you can conclude that the jury decided based on this record evidence that mr sloan was aware of  all of the evidence is in fact of the contrary and the jury compensatory damages award does not support that they considered that a fraudulent misrepresentation so the district court clearly got that your counterpoint if you are the district court clearly says a simple test drive would have disclosed this the fuel leak he says other things and sloan frequently drove this car in the last one to drive it before shipping it away and boardwalk conducted its expect inspection in october of two thousand and sixteen and he testified that based on the mileage reading it was not enough for anyone to have evaluated that that comes from mr easton's testimony you seem to be arguing i think for nokia damages because if i'm hearing correctly you're saying everything the district court relied on is wrong or almost everything the district court relied on is wrong and my characterizing your argument today correctly though you are review of the record requires a reduction of the punitive damage award and the jury's review of the record be the judges review of the record did not properly take into account the evidence before if you're going to determine whether the conduct was reprehensible you've got to properly evaluate the record evidence and i don't think the district judge did what about the act and you know i frankly think your strongest argument is based on the cases in the circuit and other cases that are particularly on point to this case and the you can point to that would provide at a good marker for how we should approach the issue in this case there are thirty one is under such as hoffman and of course of that case the reduction down from two to one to afford one ratio with the most reprehensible conduct you can possibly imagine the other is wallace versus d t g operations and quickly versus winter small thirteen thousand dollars in one case twenty thousand dollars in the other is not a justification for a high award of punitive damages so if you take the court's decision versus hoffman keeping it dollars does not justify a departure from the four dollars to one dollar ratio which the supreme court said is walk the constitutional standard should be suppose we leave that we leave the claims alone i know you're resting on your briefs and i don't want to get i'm here but suppose if we have incidental damages and we have compensatory damages do we base it on both of those things in terms of the ratio and your view is it for the one from the total between or just come tell me why  not on any kind of notice in conducting its business but it is subjected to a punitive damage award for a warranty claim it's not permitted by law and accordingly the notice provision under the due process length and on the on the fraud claim i understand the district court instructed the jury that in a nd set actual damages were only available on the warranty claim but under the the arkansas uniform commercial code incidental damages are also available for a fraud type class and so if those remain if you have if you have a fraud type claim and you can get incidental damages than should it be based on the incidental damages as well even if the district court instructed the jury incorrectly you could have gotten them for fraud under under arkansas law and the district court instructed the jury that incidental damages were not available for a fraud type claim so if the incidental damages cannot legally a rise out of the  that their main defense was that there was no knowledge of the potential risk and if i if i might i just would like to focus briefly on some of the evidence that was presented at trials of the trial of the us that silver star represented to a deli that all the repairs had been that he was unaware that or deny that order walk quote as he put it explained to me what needed to be done for the car to be safe to drive instead he said that the only reason he didn't make the repair was that quote i was told there was actually found the opposite i think you'll find that in the court's opinion well i think it was and i think to be fair i think that's an inference based on the fact that he reduced the punitive damages by over ninety percent but i think he found that there was no evidence in the record showing that the jury was passion but he grounded his opinion and the reason he reduced it by that number as you point out in the fact that he thought it was grossly excessive in relation to the actual harm for your getting done with your time please address our line of cases  we say awards in excess of ten to one cannot stand i know their qualifications and then there's undersexed saying four to one is about right and there's even a table as you probably know in under six setting out all of the cases that we could behind the court could find at that time how you calculate the ratio in our view this is not a two hundred and twenty seven to one ratio case this is something more like two to one or one to one or negative ratio just as the supreme court said it and that's because the denominator is actual or potential harm so on is that potential harm is in the forseeable and so as the st report found the potential harm in this case was substantial and i think you could measure it in the millions not the thousands of dollars and if that potential harm admission the potential be a probability you know and shouldn't be the sum of the sum is the big thing and of course there are cases where you can say that the you know it's a trillion dollars possible damages but the chances of it  an infantile small part of one percent so shouldn't the focus be on the probability i don't think so i think the focus should be on whether it's reasonably fair if it's not reasonably forseeable then the defendant didn't have fair notice that this type of penalty could on notice then i think the state has an interest in deterring and punishing conduct that could give rise to grave even if it's even if the probability of was extremely low what's the same reason the state has an interest in punishing duis for example the probability might don't get that all the drunken driver can run into a family and kill a family ok so now we're back talking about this so we're back talking about the probability of that happening right well and the reason i'm focusing on the state in this is something that the supreme court here's here's a other problem that i think judge judge benton's kind of getting at which is the potential harm is even quantified here there's nothing in the record that says if it if all of these horrible things would have happened here would have been the damage right right all we have is quantified precisely that either of those but but certainly the probability but that's in part because there was no evidence on the other side we said look this is a this defect gives rise to significant risk of bodily injury or death undoubtedly the case that the substantial the potential harm in this in this case on this record was substantial and i think that's enough and if you look at the supreme court's decision and so for example or this court's decision is a branch it didn't look at the potential that well look at it we can't get around the fact that it's necessarily an imprecise exercise and that's one reason why justices thomas and scalia departed from the entire project because it's just not acceptable the principle that the only really looking here to see whether it shocks the the damages that were awarded well i mean at i think the relevant question is whether and that is a factor that the jury could take into consideration in trying to figure out what is an appropriate number that will punish and deter this type of misconduct the reason i take issue with my friend on the other side which is that his position is you just shut your eyes to the potential harm that could have been suffered is that that doesn't i mean st of all it's been rejected by the supreme court and this court the supreme court ever in every one of its substantive due position been squarely rejected but it's been rejected for a very good reason and that and that's the it would give it would severely undermined the state's interest in punishment deterrence where the state is not just looking at the outcome of a particular co misconduct it's looking at the wrongfulness of the misconduct and the wrongfulness of the misconduct doesn't turn on what happens to arise after the conduct takes place you look at the the conduct at the time it occurred and whether the defendant was engaging in a course of conduct that could have given law seems to require that and it's really hard to undo and so you're right the supreme court has talked about potential harm the supreme court has talked about all those all these things but i kind of get back to the point that with our case law which i think probably goes too far personally how do we quantify how do we figure out how do we put that in the end the equation and figure out what to do well and i just need guidance i was the st case i would look to in the court there said even if the ratio is not you know even if that potential harm the actual value of the potential harm isn't five dollars to eight million dollars but more like four or two or one so it doesn't actually attempt to fix precisely what the potential harm is the court says it's still within the realm of reasonable and i think you could do something very similar here i mean i wouldn't start with that question what is the potential harm and you conduct the analysis i would start instead with the presumption that the jury acted appropriately here ashleigh and then ask whether in that out the door when the we think the district work out about ninety percent right and then it just fall rd at the very end of its analysis and the mistake it made is that it looked at the ratio and plug in only the actual harm not the potential didn't even consider the fact that the potential harm could only take into account potential harm at the reprehensible any part of the analysis the st factor and not the ratio and i think that's in the state it's a mistake that if you look at all of the supreme court cases in this area you will find it let me let me ask you about the so getting and please address what opposing counsel said about that i think if you were to say the potential harm does it matter so i will answer this question on that assumption yes and you're just look i think the right question is what is the actual harm that was offered and i don't know that you get into the weeds and you look at well in this claim given the instructions you only look at the compensatory damages and the jury was required to ignore the other damages that out of pocket damages that resulted  this conduct i just don't think there's any support for that and i think if you look at the supreme court's cases basically they talk about actual harm that it keys really use the word compensatory damages in cases where there's no distinction between natural harm incidental band and so it's a little bit different but i don't see why the logic of the supreme court cases in this area would require that this court distinguish between the two under substantive due process principles i think that is yet again asking key versus blue springs for sales and is not a comparable case so i think it was a twenty seven to one collective ratio there are a few different defendants and they had different damages i mean one of them it was ninety nine dollars to one dollar another one was a different one but was appropriate and far from the constitutional line and so if you start with that baseline this court's precedents then i think i mean it requires a rejection of my of my friends on the other side position and i think that even the jury's award is a little i single digit ratio and tried to adhere to what campbell instructed when we have the racial discrimination case market so i can't think of a name quickly but it certainly didn't go by single ratios correct you know one dollar a novel damage  economic damages there was nothing to compare it to so they're comparing the body economic damages that this man suffered from his x two x zero and ace of branch both focus on the life really hard and that's