corporation this court should reverse and romance matter for two primary reasons that i will cover with the court st the district court failed to properly charge the jury on the wall as it relates to substantial factor causation mackay nd the district court failed to conduct a proper comparative review of the verdict for excessiveness as required under the united states supreme court's decision in gas perini which is based upon your reverses tompkins and which this court stein case either or both of these primary reasons wants a reversal and a rematch and at a minimum a re manned with the rector's to the district court acquiring comparative review as to whether a new trial absolute or the district court in comparing verdicts applies of all in the review i will cover st the issue of whether the jury was properly charts it's my please the court here the district court failed to charge the jury in sufficient manner on the mob by neglecting to charge that mr finch needed to establish that mr finch rather needed to establish he had frequent and regular exposure in close proximity the jury properly own regularity in frequency and here i would note that a belly brief page fifteen the plaintiff seemingly concedes that warm in the proper test and if that were appendix that you're referring to is when the district court after refusing to charge the dormitory we proposed to ten dollars to eleven dollars offered an alternative charge and said would we rather have the plaintiffs charged or the taylor charge that the court drafted and left with that option without waiving our objection earlier on her own and we said we would go with the court's scholer so we sustained our objection that i just want to be sure i understand what you think your record is a trial we did not waive our objection that we wanted the woman factors towards not do not believe and i think the record shows that when the district court offered us the lesser harm for alternative charge we think still improper we took that versus the pose with if i'm not charging yours but i'm giving these two other options we chose the courts charge versus the plaintiffs which again the record i think we understand thank you your honor and here with that choice being the question drawn or the district or seemingly did not disagree that warman was the proper standards but here attempted to charge or tailor a charge rather that failed to adequately address frequency and regularity as it related to that is that as a given charge from the district court and what are issues they are your honor and why it matters under knoll vs all arced and the factors you alluded to in the standard view here what's probably charged is it matters based on the evidence and where the failure i think your honor in the attempt to tailor is the judge failed it talked about mr finch working around places where koval as best just his selection was but it did not talk about the duration of the time he walked around those products just talked all about how the charge only discussed how long he worked at the plant which is not the same thing your honor as around those products under to substantially factor causation test on the north call you also judge the judge also did not charge frequency how frequent he did that and your honor it matters here under the north knoll versus arson test which charge we think was correct and was not substantially covers of discovered him and why  here's why it matters your honor failing to charge frequency and regularity at joints into sixty seven thousand five hundred and sixteen to seventeen and i'm sorry to read to this court but since we're not together the question was did you ever mess with the containing insulation products frequency how long regularity mr fish worked in the plants seems to me although not in the exact language of the prior case the instruction did for the points that you  running short on time and i won't talk too fast but i will and i think this may be the preeminent issue where the district courts fail to engage d in a comparative verdict analysis of similar north rini is the kind of the head of the anatomy of this body of all in which she said you must as a rule of federal procedure compare like state court verdicts arising from that state court when engage in a comparative analysis and like north carolina south carolina doesn't have a statute mandating comparative review and complete story damages cases instead it's of rule federal procedure so  prejudice is the standard in south carolina you must follow with go compare and follow that rule and i think that was what is lacking here is st the comparisons and then the application of the state standard so i don't think north carolina changes the analysis i think that is the standard by which the court is governed and here in north carolina sitting in diversity passion and prejudice or something not in evidence that explains why the verdict was an outlier so i don't think the results changed i think this is less this court i think changes path from enron or what you just said and i tracked entirely in four to not if we go to the district court record in this case number ten dash one hundred and twenty five which chief judge didn't teach us conrad had  back to the district will be the district court had already engaged in a comparative analysis i think that a judge you have to answer your question i think the analysis matters because here on this record i think if the district court looks at compare of cases doesn't like the others therefore to meet the twenty of you read versus tompkins to ensure that the state court verdict you would get in state court matches or similar to those granted by a jury sitting in a diversity court and and thank you for the extra time you permitted me and in answer your question thank you which she found no merit to como's arguments the court found plain just evidence on liability and damages to be both persuasive and compelling the district court concluded that quote the fact that total lost and the jury returned a large verdict is argument the standard of review the dischord bring to this is that total has a heavy burden and challenging the instructions because the trial court has so much discretion to fashion the charge opinion does not necessarily provide the exact language for a jury instruction it provides the general principles of law that are to be used but the district court judge has the discretion when formulating instructions  opinions are not jury instructions nor are they meant to be rather they articulate general principles of law that decide cases of course appellate opinions may died at district judge's discretion when formulating jury instructions or even bear upon the formation of pattern instructions but they are no means intended to prevent the district judge's discretion to formulate a suitable charge for a specific trial and here does exactly what the district court did she fashion the cause ation instructions to take those warming factors and apply them to the facts of our case the fact that mr finch is more what the evidence showed about his exposures in in the in the firestone plant as well as the disease at issue and as the court has has noted each factor was included in the instructions with the specific application to the fact how instructions said that the jury had to consider the scientific evidence of how much exposure is required to cause the ceiling and whether mr mr finch had that level of exposure and that is a whole nother hurdle for the plaintiff to have to have said that they preferred the court's charge as it sits and at that point the district court interpreted that comment to be an agreement to the charge she said on the record that  of your appeal problem and coble at that point was completely silent and didn't raise in additional objection or explaining that they had to continue to objection to the exact language that the court intended to charge the jury so while they may have initially raised the objection they later waived it by saying that they had read to the court's charge so i can't agree with with coble counsel that that they preserve that issue even after the district court flagged it for them that you know it appeared that they were agreeing quite different from asbestosis which was the disease that issue and mormon in mormon the court can also did the same thing considered evidence about asbestosis and that it actually takes quite a lot of exposure and quite a lot of time to develop what is the opposite it does not require nixon an extended period of time to develop and that medical evidence in our case was completely on contradicted by coble there was no medical expert brought by coble to say that out was not the case and so when the court fashion the charge she was doing it based on the evidence in the case i would also point out that the district court pointed this out and i would note that warman has been interpreted by other court and by this court as a sufficiency of the evidence standard not necessarily the jury instruction and in the court's opinion  if what is covel had wanted to challenge the sufficiency of our evidence then warman would have been a proper sufficiency of the evidence review standard but totally was a requirement of federal procedural law that would never raise in the district court and the district court did not have a chance to address that issue and her opinion her link the opinion in which she absolutely would have addressed that if it had been ratings because the court district court wasn't put on notice of that issue and did not have a chance to rule on it that issue has not been preserved in coble also has not made the argument that its failure to preserve issue is somehow excused because of fundamental error so that issue that argument has also been waived so this whole issue of whether this is a federal procedural requirement should be considered w t on the merits however i just cannot agree with the kozel interpretation i guess for me i mean gas during the whole the state law provides the standard for evaluating whether a verdict is excessive in a diversity case and that is black letter law that even kozel cited page forty of the opening brief for this proposition in consul versus above it in farms this court acknowledged that opinion that federal procedural law governs this issue the ambiguity i think from citing he comes in that when the court we mandated and with instructions to compare verdicts it cited federal law rather than south carolina law but subsequent cases have shown that the most logical reading of stine key is that it was applying south carolina law because south carolina law provides that verdict should be compared in a subsequent similarly french versus wal mart's another unpublished case from this court but the court rejected the argument that a verdict comparison had been required by virginia law holding that quote the district court is not required to re previous awards in similar cases in our briefly discuss a eastern district of virginia case benedict versus hancock tire company in which the court discusses the body of law   this french case in which the court declined to compare verdicts it was decided under beginning a loss which at the time discouraged such comparisons but did not  south carolina law requires this comparison yes your honor  i don't think that you know what if it doesn't well i think the district court i mean have to follow whatever standard is provided by the state law if it d so excessive d as to indicate that is was a result of the produce passion or president's been the trial judge and the record can set it aside and that seems to be here too similar to the standard in north carolina some of the cases cited by koval the humphreys case and the martin case were both cases applying south carolina law regarding verdict comparisons and which of a comparison was done those those are what i would point the court to right now you know i would also just note that north carolina law is is quite different than the south carolina law it is a passion or prejudice standard  but the north carolina courts have been quite clear that there is no objective test like a verdict comparisons and in north carolina the case  versus buying them which we cited in our brief is the north carolina supreme court case from one thousand nine hundred and two this is really a key case that discusses what what it means to review a district court  decision on a motion for new trial what that what it means to review it under an abuse of discretion standard and the court declined to have got any specific standard to define what is an abuse of discretion and there the court of a ppeals had used a sort of more objective kind of standard looking to whether the verdict was within quote within the maximum limits of a reasonable range and the north carolina supreme court reversed that and said no we're not going to adopt any hard and fast rule like that we're going to look we're going to take it on a case by case basis and use our tried and true abuse of discretion standard and so i would just say that's that's quite different from the south carolina cases that do appear to to compare verdicts north carolina law also indicates extreme deference to the trauma courts in evaluating the existence of passion this they recognize that the trial court judges are in the best position to evaluate the circumstances because they were present and witness the trial and the jury's reaction and in north carolina the case law indicates that the discretion to review the verdict is practically unlimited and that those are the factors that led the district court here to properly reject a verdict comparison because of that extreme deference to the trial judges that as indicated in north carolina law and the fact that they are into size reviewing the evidence in the case to determine if there was passion or prejudice or if the amount of the verdict is actually based on the evidence  regarding each supposedly comparable case to determine whether they were even analogous to this case they had listed eleven cases and for most of them there was only an amount of millwork and no actual details about what evidence was or what the damages were and it was impossible for the court to do that verdict comparison even if she would you know would have won it or if the law had required it she found that the verdict had insufficient detail and the ones where that there was some detail the period of pain and suffering was different for the family relationships were different than what was presented in our case and she t yes i was just going to ask you what did the verdict form look like it's it's a very simple form there are two liability questions and one damages question the damages that's right your honor yes it was one amount for all damages his damages and the family which included his widow and three children and they were all the stay well in this court than they relied on for the district in the district court and that i think alone is improper because this court task is to determine if the trial court abused its discretion in in denying a motion for a new trial and the trial court can use its discretion and not considering cases that were never presented to it also totals the cases that it seeks to compare are almost all unpublished cases it's submitted thirteen cases to this court twelve of which are unpublished and there's federal case law that holmes it's really not proper to compare a verdict to under the bush camp says because they haven't been tested through the appeals process and there's just not as much information available on the verdict and it also doesn't serve the purposes that kozel claims of ensuring a consistent result in state in federal court because the issues is really well i mean according to coble if you're trying to get consistency you would look to what would be upheld b a north carolina court and so that really requires looking at published cases and verdicts and they've only cited one published use of the early on the case of north carolina which is the william case and that case was not a wrongful death case it's really hard to compare this case in which mr finch you know obviously passed and his family has damages from that whereas in billions it was only the plaintiff and his pain and suffering and he had not passed yet so the damages are really not comparable and that when it was a seven and a half one million dollars award which coble says ingested for inflation would be nine million three  again that's not that couldn't really be fairly compared to the damages missed case that were much greater even ringback if the court was to consider these i'm told wish very ticked i would also point out that four of the twelve are over thirty million dollars that hardly shows that our verdict is an outlier or unreasonable so you know in short the district court properly followed north carolina when a law in evaluating the board with reference to the evidence presented and whether it was influenced by practitioners of prejudice and she found unequivocal that there was no evidence of passion or prejudice and that given the evidence in the case which she reviewed at links in her opinion that there unanimous damages award was not excessive given the evidence of damages that we  had the court found in reviewing the record the court found that coble did not put on evidence about damages and offered little to no cross examination of witnesses who testified about damages total substantively address damages during opening statements or in closing arguments so the evidence of damages here the court found that there was compelling and month were quite were quite bad his our medical expert testified that he had quote eight months of a terrible terrible course so that combined with the damages that his family ha suffered from his loss and we had evidence that was not contradicted that his life expectancy was fourteen years and the court found that the evidence was compelling that his death deprives his family the fourteen years of his society comfort guide and advice and companionship and that these losses were of a substantial value and the evidence of his family's losses came from his widow  honor i mean you think you have a bundle yes ma'am i do quickly four points judged at that i'd like to make the question you asked my sister of all our number one south carolina north carolina substantive wall or the saying passion and prejudice not in evidence there is no state requirement in south carolina the district court or the trial court compared verdicts no case was cited because none exist there may be some confusion in a punitive damages setting which is not here this is only compensatory damages under gamble vs stevenson the court does do a due process check on the size of the verdict for punitive damages in south carolina but here this is no bar in north carolina or south carolina against doing a comparison the worthington case your honor that was cited to you does not bar comparison it just talks about the strip in a high standard of overturning the verdict and case and the decision for not both of those decisions one of these locations want to companionship case combines those st in those cases were not but fifteen million dollars in the for not case reversed because it was too excessive because there wasn't sufficient record of brief break before hearing the next case