[00:00:00] Speaker 00:
The next case this morning is 24-5035 Bond v. Sheriff of Ottawa County, counsel for appellant.

[00:00:12] Speaker 00:
If you would make your appearance and proceed, please.

[00:00:27] Speaker 03:
May it please the court

[00:00:29] Speaker 03:
Good morning, Your Honors.

[00:00:30] Speaker 03:
My name is Allison Levine.

[00:00:32] Speaker 03:
I'm representing the appellant, the Sheriff of Ottawa County, Oklahoma, in his official capacity.

[00:00:38] Speaker 03:
This appeal arises from a jury verdict in the Northern District of Oklahoma.

[00:00:44] Speaker 03:
The case concerns a Section 1983 claim for deliberate indifference to the medical needs of pretrial detainee Terrell Ellis.

[00:00:53] Speaker 03:
The claim was an official capacity municipal liability claim.

[00:00:56] Speaker 03:
The sheriff in his official capacity was the only defendant.

[00:01:00] Speaker 03:
There are numerous grounds for appeal as explained in our extensive briefing, but the predominant overarching issue which I'll focus on today is that the damages verdict, a compensatory damages verdict of $33 million can only be characterized as excessive, impermissibly punitive, and shocking to the conscience.

[00:01:24] Speaker 03:
The verdict certainly raises the inference that it was the result of passion, prejudice, and improper causes invading the trial.

[00:01:32] Speaker 03:
Without that occurring, the weight of the evidence does not support a $33 million compensatory damages verdict.

[00:01:40] Speaker 03:
And the trial court's determination otherwise was an abuse of discretion.

[00:01:44] Speaker 03:
A remitted or a new trial should have been ordered.

[00:01:49] Speaker 03:
I'd like to start with the excessiveness of the verdict.

[00:01:52] Speaker 03:
Again, this was a non-economic compensatory damages verdict.

[00:01:58] Speaker 03:
When a jury has given an excessive damages verdict, when the verdict seems to be too far out of line, an appellate court can reverse the lower court's denial of a motion for new trial.

[00:02:11] Speaker 03:
One way to measure excessiveness is a comparison to jury awards in other similar cases.

[00:02:18] Speaker 02:
What's the legal framework that you're using for the argument you're making now?

[00:02:22] Speaker 03:
I am citing to Gasparini versus Center for Humanities, 1996 U.S.

[00:02:29] Speaker 03:
Supreme Court case.

[00:02:31] Speaker 03:
And also for the comparison to jury awards in other similar cases, that's Wolf versus City of Wichita.

[00:02:39] Speaker 03:
10th Circuit, 1989, as well as Evans versus Fogarty, and that was 10th Circuit, 2007.

[00:02:47] Speaker 00:
In our Burke case, didn't we not say that we discouraged comparisons to awards from other cases as part of the remittitor analysis?

[00:02:57] Speaker 03:
That was mentioned in the Burke case, that it was discouraged, but not that it was prohibited.

[00:03:04] Speaker 00:
And I'm not asserting that it is prohibited, but the point is,

[00:03:09] Speaker 00:
Presumably that should qualify your argument then because it is not just because there are other verdicts that are lower doesn't mean that this one is an abuse, the court abused its discretion to accept this one, right?

[00:03:23] Speaker 03:
That is correct and that is not my argument that that is the sole measure of excessiveness, but that is certainly a measure.

[00:03:31] Speaker 04:
Well, in looking at the cases that you cited, don't they typically come to a conclusion and then look at the other cases as sort of support for the conclusion they've already reached?

[00:03:45] Speaker 03:
Yes, that's correct.

[00:03:46] Speaker 03:
One of the cases that I cited to young versus correctional health care, which I think we're very much in a unique position there,

[00:03:54] Speaker 03:
because the young case was tried in the northern district of Oklahoma on a deliberate indifference to medical care claim in a correctional facility setting just a few months before the present case was trialed.

[00:04:09] Speaker 03:
And of course, the judge in that case, when ruling on the post trial motions for remitted or a new trial, cited to Burke and came to the conclusion and then looked back to Burke to support it.

[00:04:22] Speaker 03:
And that's really where I'm looking to urge this court to look at comparable verdicts.

[00:04:32] Speaker 03:
As I said, in Young,

[00:04:35] Speaker 03:
There was a $14 million compensatory damages verdict for a deliberate indifference case.

[00:04:40] Speaker 03:
And that court looked back to Burke where there was a $10 million compensatory damages verdict.

[00:04:47] Speaker 03:
And the reasoning the court went through in Burke to determine, they of course determined that the $10 million verdict was not excessive.

[00:04:58] Speaker 03:
And essentially, the court stated that it was large, but it was on par with cases involving similar conduct and was not excessive when the plaintiff had endured considerable pain and suffering during five days at the jail.

[00:05:16] Speaker 03:
They essentially used a per day calculation working out to two million dollars of compensatory damages

[00:05:25] Speaker 03:
per day that the plaintiff was in the jail.

[00:05:29] Speaker 02:
Was the amount of the verdict here less than what was requested by the estate?

[00:05:35] Speaker 02:
Yes it was.

[00:05:36] Speaker 02:
How should we be thinking about that?

[00:05:40] Speaker 03:
A plaintiff can request any amount of damages that they'd like to request, especially when it is a non-economic situation

[00:05:50] Speaker 03:
where we're not looking at medical bills or things like that to give us something to ground it.

[00:05:55] Speaker 03:
It's simply based on pain and suffering.

[00:05:58] Speaker 03:
They could ask for $100 million, they could ask for $500 million.

[00:06:03] Speaker 03:
And it was less than the, I believe approximately $50 million that the plaintiff had requested.

[00:06:10] Speaker 03:
But given the facts of the case, it was still grossly excessive.

[00:06:18] Speaker 04:
We're dealing just with compensatory damages.

[00:06:21] Speaker 03:
Yes.

[00:06:21] Speaker 03:
Yes, Your Honor.

[00:06:22] Speaker 04:
How should we view the fact that the District Court denied or overruled the objection to a discussion of deterrence during the closing argument?

[00:06:35] Speaker 03:
That is the biggest issue with this case.

[00:06:41] Speaker 03:
Deterrence arguments, of course, in the 10th Circuit

[00:06:45] Speaker 03:
are not permitted in cases where punitive damages are not at issue.

[00:06:50] Speaker 03:
And certainly punitive damages were not at issue here.

[00:06:54] Speaker 04:
In Burke, didn't the decision assume without deciding that it was improper?

[00:07:01] Speaker 03:
In Burke, yes it did.

[00:07:04] Speaker 03:
But I'm referring to case law from, I may pronounce this incorrectly, Rachel or Ratcher from the 10th Circuit where it held that it certainly

[00:07:15] Speaker 03:
can be prejudicial to raise arguments of deterrence when punitive damages are not available.

[00:07:24] Speaker 00:
It can be prejudicial, but is that the same as saying it is barred?

[00:07:31] Speaker 00:
Deterrence conversations are prohibited?

[00:07:33] Speaker 03:
I think it is all about context.

[00:07:35] Speaker 00:
It is, which means that it doesn't mean that necessarily discussion of deterrence in this case

[00:07:42] Speaker 00:
would be prohibited, right?

[00:07:44] Speaker 03:
It doesn't mean necessarily, but the context in this case shows that it is.

[00:07:49] Speaker 03:
And I believe the district court in its order denying the motion for remitted and remote motion for a new trial stated, dismissed defendant's argument that the argument for deterrence in the closing argument was

[00:08:11] Speaker 03:
improper, she stated that defense counsel had mentioned in his closing argument that the jury cannot punish, cannot use, which is a true statement of law, that the jury cannot issue punitive damages.

[00:08:30] Speaker 03:
And the district court said, well, plaintiff's counsel came back and it was fine to say that because it was a rebuttal to

[00:08:41] Speaker 03:
defense counsel's argument that punitive damages are not allowed.

[00:08:46] Speaker 03:
And to me, the context is very clear, that if you're using the argument to refute defense counsel's statement that punitive damages are not allowed, you're stating that, oh yes they are, punitive damages are allowed, we're just calling them deterrence damages.

[00:09:06] Speaker 00:
Not necessarily.

[00:09:09] Speaker 00:
why wouldn't it be the case that if the defendant says punitive damages are not allowed and the plaintiff says, but, you know, they may not, I don't think they said this, but you can do this.

[00:09:25] Speaker 00:
You can't, you know, you may not be able to do that, but you can do this.

[00:09:29] Speaker 00:
And as the district court described it, it was a question of internalizing costs

[00:09:34] Speaker 00:
And that was very consistent with the argument that the plaintiff was making, that they were trying to operate a jail on the chief and that if you allow them to continue to operate a jail on the chief like this, they're gonna declare victory because you let them go about doing this.

[00:09:50] Speaker 00:
So it was a situation of internalizing costs, was it not?

[00:09:55] Speaker 00:
So I guess I have two questions there.

[00:09:58] Speaker 00:
Why couldn't a retort to the statement that you can't punish

[00:10:04] Speaker 00:
doesn't necessarily have to mean yes, you can punish.

[00:10:08] Speaker 00:
You can have a different rebuttal, can you not?

[00:10:10] Speaker 03:
I believe that you could, but I don't believe that's what happened in this case.

[00:10:15] Speaker 03:
The district court dismissed this as an off-the-cuff rebuttal.

[00:10:20] Speaker 03:
This was absolutely scripted.

[00:10:22] Speaker 03:
This was almost identical to the argument the plaintiff's counsel made in the Young case, but of course in Young, punitive damages were available.

[00:10:34] Speaker 03:
What the jury heard, one of the last things that the jury heard before they went to deliberate was that the very point of a 1983 lawsuit is deterrence to keep this from happening again.

[00:10:48] Speaker 03:
The jury was told that they were the group of people who could prevent this from happening in the future.

[00:10:56] Speaker 03:
And this was also tied in to an argument not just of what, not just of what

[00:11:05] Speaker 03:
the facts related to Mr. Ellis and his detention and any pain and suffering that he endured and any indifference that might have occurred.

[00:11:15] Speaker 03:
This was made in conjunction with a statement that county employees, the sheriff, has the attitude that inmate lives don't matter.

[00:11:27] Speaker 04:
If we were to agree with you that the discussion of deterrence

[00:11:35] Speaker 04:
was inappropriate and that it was not insignificant in the closing.

[00:11:41] Speaker 04:
Didn't the district court, who was in the best position to observe the jury over the course of the trial and hear the evidence of the pain and suffering, wasn't she in the best position to determine whether that will presume error in that closing argument

[00:12:05] Speaker 04:
affected the size of the verdict?

[00:12:09] Speaker 03:
Well, she certainly was present to hear the evidence, to hear the arguments.

[00:12:14] Speaker 03:
However, it was clear from her order that she wasn't relying on 10th Circuit precedent regarding deterrence.

[00:12:23] Speaker 03:
She was relying on orders from the 2nd Circuit and from the 9th Circuit.

[00:12:27] Speaker 03:
And this issue had been raised well before trial in a motion in Lemonee by defense counsel.

[00:12:33] Speaker 03:
And an ongoing objection was lodged by defense counsel related to this issue.

[00:12:39] Speaker 00:
And are arguments about deterrence per se prohibited?

[00:12:45] Speaker 03:
In a case where, such as this one, where punitive damages are not available, yes, I believe they are.

[00:12:52] Speaker 02:
But deterrence is an acknowledged goal of 1983 cases.

[00:12:56] Speaker 02:
Right, the statute, isn't it?

[00:12:59] Speaker 03:
Yes, it is.

[00:13:00] Speaker 03:
It is.

[00:13:02] Speaker 02:
It can't be off limits.

[00:13:03] Speaker 02:
It has to be, I mean, I think your argument doesn't say otherwise.

[00:13:06] Speaker 02:
It has to be in context.

[00:13:08] Speaker 03:
Yes, as I mentioned before, it does have to be in context.

[00:13:11] Speaker 03:
And when you look at the context of what occurred here and what else was said here, it's very clear that the plaintiff's counsel was arguing for deterrence in terms of punishment.

[00:13:25] Speaker 02:
And why is the instruction that the court gave, why is that not curative of any problem that may have?

[00:13:32] Speaker 03:
The court did not issue any curative remarks at the time.

[00:13:36] Speaker 03:
The court relied on a very general instruction and stated that it's presumed that juries will follow the general instruction, that they will follow the law.

[00:13:48] Speaker 02:
Well, there was also an instruction on compensatory damages as being the only thing available, right?

[00:13:53] Speaker 03:
Right, correct.

[00:13:54] Speaker 02:
And did you object to the instruction as being insufficiently clear in terms of what it was telling the jury about how they should think about deterrence or not?

[00:14:04] Speaker 03:
No, there was no objection to that jury instruction.

[00:14:08] Speaker 00:
And as a follow-up, and I should have looked at this, but in your submitted instructions, did you request an instruction that said punitive damages are off limits?

[00:14:17] Speaker 03:
Yes.

[00:14:18] Speaker 00:
And did you object to not getting that?

[00:14:20] Speaker 00:
Did you get that in the principle instructions, in the instructions the court gave?

[00:14:25] Speaker 03:
I do not have the answer to that right now because we didn't challenge that aspect of the jury instructions.

[00:14:30] Speaker 03:
But as I said, we raised that in the motions in Lemonaise to start with and raised the ongoing objection.

[00:14:38] Speaker 00:
But, well, okay, but to clarify, I mean, if the point is,

[00:14:43] Speaker 00:
whether one can be comfortable that the jury did not rely on punitive motivation in light of the argument of defense counsel, then looking at the, if the court gave an instruction, beyond the instruction that said you could only give punitive, I mean, compensatory damages, if the court in fact gave an instruction that said you can't consider punitive motivation, then that matters, doesn't it?

[00:15:08] Speaker 03:
It does.

[00:15:09] Speaker 03:
We're required to

[00:15:11] Speaker 03:
to believe that the jury followed the instructions that they were given.

[00:15:15] Speaker 03:
But again, as I said, in the context, I think the context overrides the general instruction and the general presumption that the jury followed and understood

[00:15:32] Speaker 03:
the distinction between deterrence and punitive damages.

[00:15:37] Speaker 03:
And I'm not sure that that was ever made clear.

[00:15:40] Speaker 03:
And I know that plaintiff's counsel in responding to these arguments had focused on the fact that he never used the word punitive, never used the word punishment, only used the word deterrence.

[00:15:52] Speaker 03:
But I don't believe there was ever any adequate explanation of the difference between the two.

[00:15:59] Speaker 03:
And Your Honor, I see that I'm over time.

[00:16:02] Speaker 00:
Thank you, counsel.

[00:16:03] Speaker 03:
Thank you.

[00:16:19] Speaker 01:
Good morning.

[00:16:19] Speaker 01:
Bob Blakemore for the plaintiff.

[00:16:23] Speaker 01:
This case is a truly tragic case, uniquely disturbing.

[00:16:31] Speaker 01:
As the district court correctly found, there was overwhelming evidence.

[00:16:36] Speaker 01:
And she found that that evidence supported the verdict in this case.

[00:16:42] Speaker 01:
During his time in the Ottawa County Jail, Mr. Ellis encountered unspeakable mistreatment and nightmarish conditions of confinement tantamount to torture.

[00:16:54] Speaker 01:
Mr. Ellis' suffering and death were entirely preventable.

[00:16:59] Speaker 01:
The jail staff's reckless and at times depraved indifference to his serious medical needs is shocking, shameful, and indefensible.

[00:17:10] Speaker 01:
And in fact, defense counsel largely agrees.

[00:17:19] Speaker 01:
During Mr. Poe's closing argument in this case, he says, and this is a Palin appendix 1894,

[00:17:29] Speaker 01:
This case is an emotional one, not just the death, but especially when you factor in the verbal comments, the ridicule by the staff.

[00:17:39] Speaker 01:
And that's not even mentioning Teresa Horn.

[00:17:42] Speaker 01:
But no matter how much you hate Teresa Horn, no matter how much you hate Charles Shoemaker, Johnny Bray, Curtis Lawson, all of those who could have done something, but for some reason didn't, you cannot award damages that would punish the county.

[00:17:58] Speaker 04:
Well, that's correct, isn't it?

[00:18:00] Speaker 01:
It is correct.

[00:18:01] Speaker 04:
So tell me on the closing argument for the plaintiff after an objection about discussing punishment, there's an argument that is relatively robust about deterrence.

[00:18:20] Speaker 04:
And, you know, I think we have certainly strongly hinted

[00:18:27] Speaker 04:
that deterrence is not a proper consideration in terms of compensatory damages.

[00:18:32] Speaker 04:
Compensatory damages are pain and suffering, loss of consortium.

[00:18:39] Speaker 04:
You could have had loss of income, but you didn't put on any evidence of that.

[00:18:43] Speaker 04:
Why shouldn't I be concerned about the impact of that deterrence argument to the jury here?

[00:18:52] Speaker 01:
Your Honor, I think when you look at, and it's actually quoted

[00:18:57] Speaker 01:
twice in the court's order.

[00:19:01] Speaker 01:
But when you look at Mr. Smolin's argument, when he's talking about, for instance, when he's asking for the saying he believes that the case is worth $50 million, he says for Terry Ellis's pain and suffering, there's a discussion about deterrence.

[00:19:22] Speaker 01:
And I think when you look at the argument as a whole,

[00:19:28] Speaker 01:
What he's saying is, is that don't devalue this man's life, don't devalue his suffering, and award a- That's not what he says.

[00:19:36] Speaker 04:
He says, you're the last line here, and you've got to send a message to these people so they don't go out and high five, add a low verdict, and go out and do the same thing and have other people suffer.

[00:19:54] Speaker 04:
I mean, that's what he said.

[00:19:56] Speaker 01:
That is a statement that was made, and again, in the context of discussing the compensatory damages, and that that would have the effect, if you award the damages that were truly incurred by this man, that would have a deterrent effect.

[00:20:14] Speaker 01:
And that's a correct statement of law.

[00:20:16] Speaker 04:
That's a very fine distinction.

[00:20:18] Speaker 01:
But it's a correct statement of law.

[00:20:20] Speaker 04:
I don't think it is.

[00:20:21] Speaker 04:
Just because Congress said when they're adopting 1983,

[00:20:26] Speaker 04:
that we're doing it for a lot of reasons including deterrence doesn't mean that when they said in some instances you can get punitives and in other instances you can only get compensatory that they intended to have the compensatory definition expanded like it isn't in any other context to include deterrence.

[00:20:50] Speaker 04:
I just, I don't see that.

[00:20:55] Speaker 01:
Well, Your Honor, again, I believe that when you look at the argument as a whole, that it didn't cross the line.

[00:21:03] Speaker 04:
Well, if I think it did cross the line, what do I do?

[00:21:07] Speaker 04:
Do I say I think that the $33 million verdict should be reduced by X number of dollars, or do you remand to the district court who sat there and listened to all the evidence to make that determination?

[00:21:22] Speaker 01:
Well, I think if you think that it was improper,

[00:21:25] Speaker 01:
then the step is to look at the factors under Wittenberg and Osterhout, which includes the strength of the evidence, importantly.

[00:21:37] Speaker 04:
Well, but it would be the strength of the evidence on compensatory damages, not the strength of the evidence of how appalling the conduct was, right?

[00:21:47] Speaker 01:
Well, I think it's the strength of the evidence overall as to liability and the damages.

[00:21:53] Speaker 01:
You would look at both,

[00:21:56] Speaker 01:
and also whether the comments were pervasive and whether there was adequate curative action.

[00:22:04] Speaker 04:
The only curative action is you have a general compensatory damages instruction and then you have the jury told that argument of counsel is in evidence.

[00:22:16] Speaker 04:
Is there some other curative instruction I'm missing?

[00:22:19] Speaker 01:
No.

[00:22:23] Speaker 01:
For instance, in the

[00:22:25] Speaker 01:
the Burke case, the court found that that was sufficient.

[00:22:30] Speaker 01:
And it's particularly in a case like this where there's overwhelming evidence, those kinds of more general curative actions are sufficient.

[00:22:43] Speaker 02:
So it's your position that the weight of the evidence in Osterhout is about the evidence presented to the jury in the case?

[00:22:50] Speaker 02:
Right?

[00:22:51] Speaker 02:
Not just on how you prove up compensatory damages.

[00:22:55] Speaker 02:
Correct.

[00:22:57] Speaker 04:
Well, isn't that then punishment?

[00:22:59] Speaker 04:
Because if the evidence of liability is incredibly strong, for example, you have a video of the nurse engaging in offensive conduct that the jury gets to see, that they get to up the compensatory damages because of that.

[00:23:16] Speaker 04:
Because that doesn't sound like compensatory damages to me.

[00:23:19] Speaker 01:
Well, her conduct certainly goes to the damages because of what Terry Ellis was experiencing.

[00:23:30] Speaker 04:
It certainly goes to his pain and suffering, the level of deliberate indifference.

[00:23:39] Speaker 01:
Yes.

[00:23:39] Speaker 04:
Right.

[00:23:40] Speaker 04:
So the jury can look at that and imagine his frustration and his pain and his fear as he's there.

[00:23:49] Speaker 04:
But, and that is a measure, a proper measure of compensatory damages, but deterrence, I have a real problem with as a measure of compensatory damages.

[00:24:05] Speaker 01:
Again, I believe when you look at the statements as a whole, that for instance, as he's discussing in the closing,

[00:24:19] Speaker 01:
As Mr. Smolin is discussing the issue of deterrence, he goes on to say, I think when you really sit down and you look at the jury instructions on compensatory damage, and you think about what he was suffering, what his suffering was like, both from a physical standpoint and from a mental standpoint, and the idea that even in those moments of suffering,

[00:24:47] Speaker 01:
He just wants to know what's going on with his kid.

[00:24:52] Speaker 04:
And if he stopped there, we'd be perfectly fine.

[00:24:55] Speaker 04:
But he didn't.

[00:24:59] Speaker 01:
No, but what, again, as the court correctly held, and I think it's supported, is that what the overall argument is, is about the county internalizing the costs

[00:25:17] Speaker 01:
of their misconduct by fully compensating the estate.

[00:25:20] Speaker 01:
Do you have any other questions?

[00:25:40] Speaker 00:
I do want to just sort of recap in part and put a fine point on

[00:25:46] Speaker 00:
your response to Judge McHugh's question about if we were to find that this is improper.

[00:25:54] Speaker 00:
This line of argument, because it goes towards the question obviously of whether the court, whether the amount that was awarded should be deemed to be inappropriate.

[00:26:10] Speaker 00:
If we were to find that this line of argument was improper,

[00:26:14] Speaker 00:
then we would go through this process.

[00:26:16] Speaker 00:
Widenberg, I think, is the case where we would look at how pervasive were these comments, and presumably they weren't that pervasive.

[00:26:24] Speaker 00:
I think it was how many times?

[00:26:26] Speaker 00:
It was just a few times he referred to deterrence, right?

[00:26:28] Speaker 00:
Correct.

[00:26:29] Speaker 00:
Okay.

[00:26:30] Speaker 00:
So were there pervasive questions about the amount of evidence that was in the case

[00:26:38] Speaker 00:
and whether there was a curative instruction and decide what the impact of that line of argument would be, right?

[00:26:45] Speaker 00:
Correct.

[00:26:46] Speaker 00:
OK.

[00:26:46] Speaker 02:
And we're on abusive discretion review?

[00:26:49] Speaker 01:
Yes, it's abusive discretion.

[00:26:51] Speaker 01:
And the standard is whether it clearly appears that the challenge remarks influence the verdict.

[00:26:59] Speaker 02:
And we make that decision by looking at the four factors in Osterhout, right?

[00:27:04] Speaker 01:
Yes, Your Honor.

[00:27:09] Speaker 02:
So we could conclude that this was inappropriate, but perhaps not pervasive, and so on.

[00:27:21] Speaker 01:
And I don't believe it was pervasive.

[00:27:22] Speaker 01:
And I believe that the court, but yes, you can certainly find under that analysis that even if the conduct and the statements were inappropriate,

[00:27:38] Speaker 01:
based on that balancing test and those four factors that the verdict should not be overturned.

[00:27:49] Speaker 02:
Well, we would have to say that based on those four factors, the district court didn't abuse its discretion.

[00:27:55] Speaker 02:
Correct.

[00:27:55] Speaker 02:
So it's even sort of more generous.

[00:27:58] Speaker 01:
Right.

[00:27:58] Speaker 01:
And of course, you know that standard is whether it was arbitrary or

[00:28:07] Speaker 01:
clearly unreasonable.

[00:28:08] Speaker 04:
Or contrary to law.

[00:28:11] Speaker 01:
Or contrary to law.

[00:28:15] Speaker 00:
I can go back and look at the record, but you may know off the top of your head.

[00:28:20] Speaker 00:
Was there an instruction of the court that counseled the jury that it should not punish the defendant beyond the general instruction that says that you award for compensatory damages only?

[00:28:33] Speaker 00:
I mean, was there a specific instruction that said that punishment was off limits?

[00:28:39] Speaker 01:
No, there wasn't an actual jury instruction.

[00:28:42] Speaker 01:
Obviously, Mr. Poe and his closing made that a focus of his closing argument.

[00:28:55] Speaker 00:
Yeah, but one of the court's instructions is that arguments of counsel aren't evidence and that sort of thing.

[00:29:02] Speaker 00:
But in terms of when she gave the law, when the district court gave the law, that was not one of the instructions.

[00:29:09] Speaker 01:
No, there was not a specific instruction on punitive damages or punishment.

[00:29:14] Speaker 01:
All right.

[00:29:16] Speaker 02:
Are you aware of any case in our circuit that holds that it is contrary to law to use the word deterrence in a closing?

[00:29:25] Speaker 01:
No.

[00:29:26] Speaker 01:
I don't believe there is one.

[00:29:27] Speaker 01:
And in fact, the only

[00:29:32] Speaker 01:
circuit court that I'm aware of that actually squarely addresses the issue is the Chalmers decision.

[00:29:41] Speaker 01:
It's a 1985 decision that we cite in our brief from the Ninth Circuit.

[00:29:48] Speaker 02:
Were punitive damages also at issue in Chalmers?

[00:29:52] Speaker 01:
I don't believe so, but I know that what the court said in that case

[00:29:59] Speaker 01:
is that when discussing, and it was about a discussion of compensatory, that discussion of deterrence during an argument is not necessarily improper as long as it doesn't cross the line into punishment.

[00:30:18] Speaker 01:
And again, we believe that under that standard that the argument was appropriate and consistent with law.

[00:30:32] Speaker 01:
Anything else?

[00:30:34] Speaker 00:
No.

[00:30:36] Speaker 00:
Thank you.

[00:30:36] Speaker 00:
Case is submitted.

[00:30:37] Speaker 00:
Thank you.

[00:30:43] Speaker 00:
Thank you, counsel.