ok mr burnett may please the court jason burnett for the appellant and cross that believe r j reynolds i best reserve three minutes of my time for rebuttal the district court acknowledged that its decision to exclude the evidence of infidelity the divorce the remarriage to another woman was in its words a close question this court in a cot held that the four hundred and three balance should be struck in favor of admissibility the district court in this case erred in striking that balance in favor of exclusion the district court also erred in treating the comment that reynolds counsel was engaged in hypocrisy in the courtroom as a substantive response to the defense on the merits and on the cross appeal issue the gasoline products ruled creates a presumption that all live issues will be retrying and that's required here because the issues related to punitive entitlement are intimately intertwined with the issues of comparative fault class membership and compensatory damages now when the marital discord issue there are three reasons why the district court abused its discretion st it never explained why this evidence would be prejudicial to mrs souers the only plaintive in the case mrs souers did nothing sollars well it would have helped reynolds on the question of compensatory damages and then the admission of it would no net balance have helped mrs souers whenever i hear that argument why do you why do you argue against it then well the jury's not going out and then say oh but you know it would have helped us had it come in our it would have helped the other side had it come you took the position that you didn't want that evidence excluded so you can consistently take the position that on balance it would have helped her i'm not taking that position your honor it would have helped us at trial because the jury was not aware damages for sympathy i'm pointing out that it's natural tendency the the evidence help us relevance is that if the jury would have been instructed to presume to follow instructions up follow would not have acted on the sympathy because the court the district court should give some explanation why this evidence does have a prejudicial effect which it never appearances had a happy marriage until his death in one thousand nine hundred and five that's not obvious it's not obvious what the prejudice to mrs souers would be the it's not obvious what the prejudice to her of marital discord that happened from nineteen and seventy two would have when there's been reconciliation yes you are because the evidence was that mr sours had a drinking problem and engaged in and i came in the drinking alcohol issue came in yes you're on so you have your fighting over a past that's just a question of florida law and florida law makes clear that it's the entire course of the marriage that's probative to the extent of emotional pain and suffering loss of marital companionship we know this because the intermediate florida courts that have reviewed is relevant to an issue in state law does provide that this evidence is relevant to the issue that the balancing test is a federal question but its relevance to my question is going to the balancing to the four o three that what you seem to be arguing for is a per why this would be prejudicial to mrs souers the actual plaintiffs then yes a court could exclude it under a th rebalancing but at a minimum to exercise that discretion to do the balancing the district court has to identify the prejudice and i having an affair with and they had a divorce and you ought to keep that in mind when you're talking about and thinking about damages and all that this is not but they can of the church or at least wasn't at that time that's that's why it's prejudicial to but you hope r j reynolds hope they'll keep that in mind when the region a dollar figure no up we hope that the jury will consider the entire course the true facts of the marriage and again here polluting his cheating on his wife twenty three years before he died well in that case where the playing of comes into court and says they've had a good marriage for fifty one years it was love at st sight when this jury has the misimpression that it was a single long continuous good mar so in the record they said they had a good marriage for fifty one years in opening statement plaintiff counsel said they were married for fifty one years and i didn't say they had a good marriage or if it was not at that time mrs souers takes the stand her direct testimony and says that it was a good marriage she testified about what she saw has been do every day he was a chain smoker every day the total impression from this ten year on year your theory is that for three years when he wasn't living with her he quit smoking right now we don't know what happened and so you know there's no harm to you excluding relevant evidence of the addiction was plain as burden to prove the elements of class membership here and those three years the most significant three year history in the period of smoking because that's after the warnings came out on the pack that's dr proctor's testimony their expert that three years is the most critical and you know that's one piece of the pie the other pieces are the compensatory damages it's relevant under florida law and this cour death that death occurred in ninety five when the smoker was a grandfather the evidence that was wrongfully excluded in a cop was evidence that the wife left the home took her minor children with her that was just as long ago as the evidence of the  divorce and infidelity and adkins was the one that was closer to the point of death was if i'm not at ins is the case on the cross appeal is water and acton's versus dixie which i would like to turn to because there's a lot of cock and cases like townsend alexander and cohen which are state cases courts do look to events that happened in the past to determine the amount you need to go on next yes i do so let me talk about the cross appeal issue three key points on this to rule it's like a clear statement rule for statutory interpretation federal statutes are not presume to create private rights of action you need a clear statement for that to happen the gasoline product standard is the same it mu clearly appear that the issues are so distinct inseparable that they can be tried alone that means the default rule the presumption is that all live issues will be tried together now that presumption gathers force when we're talking about punitive damages why because  e damages must be based on the conduct under lying the liability claims so there's not some distinction between those who is the conduct that gives rise to liability that must also gives rise to the damages under the supreme court's cases there must be a nexus but and then t disease we sell to minors we conceal the risks of smoking we marketed filtered in low tar cigarettes as being safer and we manipulate the level of nicotine to sustain addiction those are the same five reasons asserted by pla in arguing why the jury should find punitive entitlement against reynolds and what's important is not only that those issues overlaps between the two but there were more than one theory and the jury only awarded fifty percent of the fault it's likely that the jury rejected some of those grounds for comparative fault in fact i'll give you one good example of the youth marketing allegation there's no direct evidence in this case that mr sauer started smoking as a youth mrs souers met him after he got out of the navy was nineteen years old  souers brother william he testified to trawl through his written deposition and he didn't know when his brother started smoking so there was only an inference that because he was a heavy smoker at the age of nineteen he must have started smoking earlier but the jury could have rejected that so if injury and that's the injustice and the unfairness of splitting the these issues in my comparative fault must be retried with punitive entitlement on remand so you're conceding plaintiff's point that we have to that we should be retroactively applying so far like the florida supreme court yes your honor they they they preserve the issue and so they preserve the issue by pretrial ruling so for the florida supreme court decision came down after the trial it was then too late for them to  a new trial exactly the thirty day period for that and so yes they're entitled to a new trial the question is the scope of that trial and this question should be decided in favor of the presumptive rule of gasoline products which requires all i've issues to be tried together compare default is tied to class membership under state law because both have to deal with whether the smoke or smoke because he was addicted or for some other reasons and then also under state law compared to falls is tied to compensatory damages under the four line case that we decided because a misapprehension about comparative fault could lead to a course a little bit artificial cause he said we don't want another trial that's correct  good morning and may it please the court there are three issues in this appeal and i'll go through them in the order they're presented in the briefs unless the court before i start somewhere in particular i'm going to start at the back of the thirty issues i wanted to get it damages question absolutely there's no question that this case were pending in state court mrs souers would be entitled to a limited retrial on punitive damages only so the question then becomes does something in the th amendment categorically bar what  is routine in state court it does not this argument's been a recurring theme in agel progeny litigation it st appeared in englewood south where the tobacco defendants contended that you couldn't break the case between the conduct elements decided in the angle findings and the individual specific issues in the progeny trial that argument was rejected it then came up in sears see where they contended that you can't decide punitive damages separate from those angle phase one conduct findings that article was rejected and then it came up and so for where they made the same argument they make here which is that you can't break the linkage between comparative fault commenced tory damages and punitive damages that argument was rejected in all three cases the argument arose and recombination of federal th amendment federal due process in the state cases states some of the memo which was a similar standards been unsuccessful at every turn you would hope for at the last gasp of this argument and in fact in two other pending tobacco appeals they don't even advance this argument they can see that the plaintiffs are entitled to  remedy you know our brief we have a raft of authority that says the semi the amendment prevents only juries from deciding the same essential issue and doesn't prevent courts from bifurcating trials from carving at the joints really routine trial practice in the modern system there's cases including cases from this circuit that say you can't even cleave compensatory damages from other elements of liability compensatory damages of course or course th amendment fact finding so as applied here their whether they're from whether peter damages is a fact subject to reexamination under the some of the men men and cooper the court held that it was not it was a legal determination that's the whole basis of why federal courts can exercise the constitutional review that they do over punitive damages if you look at cooper it says that the key facts underlying a punitive damages award that are reviewed for clear air are the facts found by the district court not the jury the district court so the issue is never treated the way you treat course them at the moment issues such as comparative review the district court and peanut of damages can determine represents ability to know about and just like the court of appeals can do in the supreme court can do but but against all of those cases showing that it's permissible to have two juries decide distinct issues even if those issues have overlapping evidence you know they say a couple of unpublished title seven cases that i think by their language is limited to that context they don't have overwhelming reasoning and then a couple in a posit cases dealing with  punitive damages or idiosyncratic state law there's just nothing against the great weight of authority here you know the best case they have is seriously which of course rejected their th amendment argument based on the jury instructions in that case of course there can be no iranian jury instructions or erroneous evidence here because we haven't yet had the trial so i think any argument on that front would be premature at best if the court has no further questions on that issue turning to the adultery and divorce question rule for all three determinations are reviewed by this court using an extraordinarily deferential standard of review clear abuse of discretion which requires a legal error a clearly erroneous finding of fact or a clear clear  of judgment and i think there's a reason why the court treats those questions that way and that's because the trial court is in the best position to make these rulings with a view towards all the facts of the case and all the proceedings of the case how the courts manage the case and i think this case illustrates that principle in two ways st as to their damages argument you have to look at the record of which the district court made its decision and mrs souers deposition counsel for r j reynolds badgered her with interested and bare saying and relevant questions about these personal scandals from the late one thousand nine hundred and sixty s including whether she knew the names of the women that mr savage cheated on her with well how she knew whether she knew how he met his other wife whether she was friends with that woman how her children reacted to the remarriage they even read to her from the deceased woman's obituary so on that record it was clear to the district court that this evidence was not offered for proper evidentiary purposes at all and that potential for prejudice was quite high indeed nd on their addiction and causation it seems which did not emerge in counsel's opening argument i think that illustrates how abuse of discretion review protects the trial court's ability to engage in basic trial management and precludes the appellate court from micromanaging the district judge when this issue was definitively ruled on on the motion in limine a which set the ground rules for the whole trial for both sides there was not a word from r j reynolds about addiction or about causation in connection with the divorce the infidelity and the remarriage and stead they tried to smuggle it into a mid trial offer of proof or worse after telling the judge specifically they would not do that at a volume nine of the trial of page one hundred and seventeen dollars they told the district judge we're going to put an offer of proof just so we don't have to call a witness which of course perfectly tracks federal rule of evidence one of three which is an offer of proof is the substance of the evidence just the facts that's not what they did when they offered proof came and it included all these new issues that had not been raised before were not raised in them in a way and then they tried to set the district court up on a motion for a new trial to toss out the whole seventy eight dollars day trial that was tried under the ground it was established on the motion in limine and this court's cases say you can't have an abus discretion where an issue was not clearly presented to the court below and you can't have an abuse of discretion over issues of basic trial management delving a little bit deeper into the damages question the district court did not abuse its discretion by focusing the jury on the genuine disputed issues not decades old family scandal that predated mr souers illness and death by more than twenty years the evidence had no relevance to mrs souers compensatory damages and this wrongful death case tried under florida if the measure of wrongful death damages begins at the time of injury going forward to the end of the deceit in some but for life expectancy about twelve to thirteen years on the record but so that's not open the door isn't just a court recognized of putting the adkins case which they rely on florida intermediate quite nine hundred and seventy seven where the the deceased it was living with his paramour six months before he died where he told his paramour he was going to leave his wife where the court described as a marriage after past its breaking point nothing like years it was a stumbling words i don't i don't think it told the jury anything immediately after that misstatement counsel reminded the jury that the proper measure of damages was from the time of injury on forward and sympathy was not to be taken into account so i think reading that much into it even if it were a one possible view i don't think it was it certainly was not the only if you don't like the most reasonable view of his statement was that married continued absence i don't think it was of discretion to view it otherwise but i also think even if he had said that it still doesn't make it relevant what's relevant is from the time of injury on forward to look at adkins what adkins says nurses there's a lot of  that may be true your honor but that doesn't change the fact that what was read what the what the jury was instructed to decide was was based on from the time of injury on th i mean even if you just look at adkins what akon says st is that that evidence is relevant to show expressed intent and probable future actions it's about whether their marriage to me going to stay together during the hypothetical world where the deceit and did not pass away that's in a cot to a cop says it's relevant to whether the decision will be able to care for his unprejudiced the district court did not abuse its discretion by determining that this evidence had a tendency to invite the jury to decide the case based on moral condemnation personal bias rather than reason again just look at the record underlined the district court's decision jury knew that this case arose out of his illness and his death and so any any inappropriate emotional reaction to him it's quite reasonable to infer that it would have been carried over to her this case is not a cop i think the most important thing recognize about a cop is that a cop involved legal air which is per se abuse of discretion in a cock r j reynolds wanted to introduce evidence of this season's alcoholism as an alternative medical causation they had experts ready to testify that alcohol may have contributed to his disease the district excluded that evidence because r j reynolds cannot prove that derrida some level of medical certainty that was legal error twofold st because the standard is preponderance not medical certainty but nd because the on the small portion of a cut the talks about relevance to damages we see two crucial distinctions between that case and this case st contrary to what my friend argued the evidence there was close in time the district court in this case was aware of a cock carefully r copy and looked at the briefs underlying it cut to see what the facts were there and he found evidence of alcoholism and alcohol affecting the marriage very close in time to the death after the deceit it became a grandfather but nd the did the spouse in a cut testified the stand contrary to the excluded evidence that alcohol had never affected her marriage there's nothing like that here finally on the addict addiction and causation question as mentioned before it was never a properly presented to the district court and so can't be the basis for an abuse of discretion but a couple of other things bear mentioning st alcohol evidence came in this case in spades the jury heard from three witnesses that he was a heavy drinker that he stayed up all night drinking stopped at the bar in his way to work drunk at work twenty six dollars packs a night required prescription medication to quit drinking in the words of an addiction expert quote had no control over that behavior even a cox says that evidence that's merely bolstering evidence can be more readily excluded under rule four hundred and three and even accepting everything they say about addiction and causation they're asked of the district court and their ask appeal is wildly disproportionate to that theory there's for example no reason why evidence of the infidelity would be relevant to alcohol or addiction and causation nothing in the record connects drinking to infidelity and if you look at their offer of proof they submitted the level of detail with which they asked the court to let them go under these questions is so out of bounds compared to this narrow legal theory they wanted to ask mrs souers the names of the women that he cheated with that he married i mean none of this is relevant to addiction so there's no abuse of discretion in in disregarding that argument briefly on the closing argument question reversal of a jury verdict over improper closing argument is an extreme remedy for extreme misconduct there's multiple presumptions against it high standard plainly unwarranted clearly injuriously the could a few cases rejecting jury verdicts on this basis tend to involve pervasive persistent misconduct calling out defense attorneys by name you know talking about who is manipulating the verdict forms in the jury instructions in other cases along with other misconduct you can look at callaway the caliber of case thirteen sr fourteen sustained objections of thirty and thirty three pages of transcript you know they where philip morris in that case appealed arguing that councils reference to rewriting history was the same type of misconduct that you see here and the court correctly i think held that that was just a general mark on the defense strategy and there's no way you could find prejudiced from from such a from such a passing remark argument those cases involve the findings the eagle findings and other individual ised issues such as in seriously here we're talking about all individualized issues and i thought the findings during my can do entitlement comparative fault class membership compensatory damages issues that the florida supreme court said as a matter of state law are all individual ised issues the cases they've decided on the gasoline products standard generally those are all fly by rulings all but one of them are simply statements in the remain punitive damages only there's no analysis not even a citation to gasoline products the exception of that the lone exception is the atlas foods case from the th circuit it cites gasoline products notes the standard and it says there's no need to retry all the issues because all of the evidence for punitive damages was before the nd jury that's not the test the test is whether it clearly appears the issues are so distinct and separable so that's not even persuasively helpful on the actual application of the standard on cooper you had the issue right judge carnes and under florida law it is a fact question for the jury as to whether punitive entitlement whether the plaintiff is entitled to punitive damages that's actually in a separate phase the st phase of trial and then the jury comes back to a nd phase of trial where they answer the question about the amount of punitive damages and cooper does hold that the amount of punitive damages is not a question of fact it's subject to did novo review look at no twelve of the cooper case it notes that the jury in that case made specific factual findings and the supreme court said nothing in our decision would allow reviewing court to disregard these factual determination screwed by the jury and then it's really a matter of state law and so for the cases they're relying on says explicitly the trier of fact must decide on remand these factual questions whether the defendant had actual knowledge of the wrong in this of its conduct actual knowledge there was a high probability of like that if injury intentionally pursued that conduct these obviously there's actually for that test the jury has to find all four of those factors before it can then go on to the punitive amount phase it has to find they're all but they're all questions of fact and that's the point and they're and the record show that's the only time i've said that this w