consider how much he would have earned in an occupation as being lost wages in fact one of the issues that judge quackenbush took up is he's not going allow in how much mr prendergast makes now as a paralegal because that if there were a wage loss claim that would be an offset about against the special damages but the lack of the damage to reputation and self image from not being able to work in your chosen profession was trained and employed as an and electrical engineer and now not just at a paralegals have a different lesser position in life but he wanted to be an electrical engineer and now he has to be something else if of this could have been worse was fifty thousand dollars subject from abuse of discretion and i think it was an abuse of discretion fifty thousand dollars is irrationally low and the twenty first century and it is based on it's not based exclusively but judge quackenbush admits that it's in conformity with and it's clear from the transcript that he relied on allen dishonest being over twenty years old alan had to do with the media defendant and alan and your honor there is a mistake right and let me point out that in our brief we say that the nevada supreme court relied on the court of appeals decision in burnett and that is incorrect what the nevada supreme court did was rely on the superior court decision and burnett because the district court the court the court of appeals decision came out a few months after the supreme court and the supreme court and allen pointed out that in carol the carol burnett case the superior court had reduced the damages down to fifty thousand dollars and found that to be convincing but just to springer points out and alan is that the superior court now that he got the facts wrong but it was central to his reasoning the superior court in burnett added he says added but that's not really true seven hundred fifty thousand dollars in punitive damages so the total superior court decision in burnett was eight hundred thousand dollars now judge quackenbush and the apple only argue here that the jury must have been confused in making its compensatory damages decision because it came up with eight hundred fifty thousand dollars and then it was deadlocked in deciding how much should be involved in punitive damages if the district court here had reduced first of all had reduced the compensatory damages award down to a certain amount such as four hundred thousand and then said that another four hundred fifty thousand would serve as punitive damages we don't live at the same result and acceptable way but fifty thousand dollars is just an the thousand bucks is on about what it came to and then it is what it came to really this jury this jury had to be nuts sent the judge to come up with that kind of number on the facts of this  still here's the problem what i have with all the stuff under nevada substantive law you cannot just determine passion and prejudice from the amount of the verdict you have to show something that took place at trial that caused the passion and prejudice of justice rose in his in his dissenting opinion and behaved as the facts of the case cannot cause passion and prejudice under nevada substantive law could the jury have to be nuts to come up with any amount over fifty thousand dollars no they didn't clearly this is a situation where the jury of the case is even that the defendant relies on the hershey chocolate case w court reduced the amount from one point two million to four hundred seventy five thousand that would have been a more rational situation to put mr credible in this case if you have a situation where you either have to accept fifty thousand which is an adequate number under the circumstances or a completely new trial including a new trial on liability now this is this is what if the judge is saying that there is that this verdict is against the weight of the evidence on the damages he should not have awarded a new trial on liability and damages and a half or quarter of the same ground you have to cover the same ground but that doesn't mean that you have to  because there was no it's not with the rules but the test is if the damage is and liability are inextricably intertwined so that the proof of the damages have to be considered in considering liability we have the opposite situation here liability has been determined all the cases that talk about don't try liability and damages separately don't talk about a case where you're simply reading that you're simply ordering a new trial because of  e damages it really is not what the judge was doing is saying either take an incredibly low amount compared to the verdict or risk taking nothing more much more palatable choice would be as if the judge amount are all from the eighty's even the nevada juries award more than that national and even the nevada supreme court is more tolerant of awards now so really what the judge should have done is give a situation where he morning your honor my name is terry care from the firm of honor from associates representing all the authorities here this morning judge fernandez you began your questioning talking about the alan case you've obviously read it thoroughly i want to point out some of the was testimony in alan case about the number of people who were watching the live television debate this political debate there's no corresponding evidence in this case about the circulation of the newspaper judge quackenbush was very careful to say i'm picking fifty as judge quackenbush points out you know that a substantive law applies you have to look at allen mr bowles and berger make reference to the other cases in the other jurisdictions but the one thing you can look at those other cases and talk about you have a good discussion about proper amount of damages and defamation per se faces and that sort of thing but most cases also discuss things like the jury's confusion between damages from terminations and damages from defamation for example and and the evidence presented by the plaintiff through a lot of day so you don't you ask yourself what did the jury do here what exactly how is it that you can have a plaintiff who says i'm going to waive special damages but the jury says well we'll give you eight hundred fifty and compensatory and then you have a judge know somebody is reputation i mean this guy comes in and says gee i think my reputation is worth a million dollars to me i mean what exactly what how does one if you get away from special damages you get away from fourth and you know you know you probably could come up with a figure in your own mind but my guess is if you took your five closest friends and put them in a room separately from each other and said you know what  case in chief there was very there in the plaintiff's direct testimony there was very little but back on defamation points out a plaintiff doesn't have to present anything on a slander per se  defamation section ten point three point three i thi for a case on damages to go to would your jury understand what what what humiliation lack of reputation and shock all those elements are a jury can determine what that is now what judge quackenbush that is he didn't go further than  on direct testimony or seized me on cross examination he did go into that he was shunned by employers that he was that he had lost every friend he had at the time if you could call them friends he talked about a vice president of hilton calling him on the phone and saying what's going on down there and he says well would you give me a job and he never heard back now what the judge said so there was evidence of what happened to mr pr terry say that that he could have presented he could have brought in people to say here's what here's how i changed my record my opinion of him here's i was going to offer him a job but i anything at all but i don't think i don't think eight hundred fifty thousand dollars is preserved i don't think the case law demonstrates that it's in the millions as reserve cases where they take where courts have taken multimillion dollar awards and reduce them to one million i think eight hundred fifty is within the acceptable realm look what judge quackenbush did he compared when it was looking at the weight of the evidence he compared it to evidence he said well there were certain evidence i didn't bring in and evidence of his  protest activities evidence of what he's making as a as a paralegal if i had admitted all those the jury would have awarded less when he was weighing the evidence he was really weighing the evidence that went to the jury against evidence that was not admitted now that's not an appropriate thing to do it's obvious this judge would have awarded laughs but it wasn't from the weight of the it was substituting his judgment for the judgment that the jury drew and i must emphasize again it is not just what judge quackenbush did in saying there should be rivetted or it is remitted are down to fifty thousand there's no way that john could accept fifty thousand that put john in a situation where his appeal on remember on the remitted or issue he had to go through another trial and face losing everything now judge quackenbush even himself brought up the idea of certifying the issue  twelve ninety two b but then decided that twelve ninety two b does not apply so the only way that john could get a review of whether remitted or down to fifty thousand was appropriate is to risk losing even that so i think there were a number of factors here first of all remember we don't have in slander per se cases we don't have the kind of proof that judge quackenbush is talking about and that mr perry is talking about that's why we presume damages we're not going to be able to get witnesses to come in and say oh yeah when i found out about this i didn't offer him a job there's too much exposure for a witness to do that that's why we presume then which is in a case like th was there enough evidence to show damages here i think that there was the kind of proof that mr excuse me that judge quackenbush is asking for would have made the ten million dollar case as opposed to an eight hundred fifty thousand dollars with the damages