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relief under the "fraud upon the court" provision <br />of Rule 60 (b) . <br />1. MALICE, WILLFULL AND WANTON CONDUCT <br />27. In Colorado, exemplary damages are only <br />available by statute. See Corbetta V. <br />Albertson's, Inc., 975 P.2d 718, 721 (Colo. <br />1999). Before a judge may impose exemplary <br />damages, it must determine that the "injury <br />complained of" was "attended by circumstances of <br />fraud, malice, or willful and wanton conduct," § <br />13- 21- 102(1)(a), which must be proved beyond a <br />reasonable doubt, § 13- 25- 127(2), C.R.S. (2010). <br />Willful and wanton conduct is defined as <br />conduct purposefully committed which the actor must have realized as <br />dangerous, done heedlessly and recklessly, without regard to consequences, or of <br />the rights and safety of others, particularly the plaintiff. <br />18. Subsection 13- 21- 102(1)(b) of the statute <br />complies with the holding in Philip Morris, 549 U.S. <br />at 357 to the extent it permits the jury to consider <br />the "rights and safety of others" in assessing the <br />willful and wanton nature (i.e. the <br />reprehensibility) of the defendant's conduct. <br />In Philip Morris, <br />the U.S. <br />Supreme <br />Court explained <br />that a jury may <br />consider <br />harm to <br />nonparties when <br />