Mitchell et al v. AbbVie, Inc. et al
Filing
111
MDL CASE MANAGEMENT ORDER NO. 92 (Memorandum Opinion and Order on post-trial motions in Mitchell v. AbbVie, No. 14 C 9178) Signed by the Honorable Matthew F. Kennelly on 12/22/2017: For the reasons stated in the accompanying Memorandum Opinion and Or der, the Court grants in part and denies in part AbbVie's motion to strike the punitive damages award and for entry of judgment as a matter of law [dkt. no. 92], and grants in part and denies in part Mitchell's motion to amend the judgment or in the alternative for a new trial [dkt. no. 93]. The Court vacates the judgment in part, specifically the finding entered in favor of Mitchell on the claim for fraudulent misrepresentation and the award of punitive damages. The Court orders a new trial on Mitchell's claim for fraudulent misrepresentation, including damages relating to that claim. The trial is set for March 5, 2018 at 9:45 a.m. The final pretrial conference is set for February 28, 2018 at 3:30 p.m. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: Testosterone Replacement
Therapy Products Liability Litigation
Coordination Pretrial Proceedings
(This document applies to
Mitchell v. AbbVie, Case No. 14 C 9178)
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Case No. 14 C 1748
MDL No. 2545
CASE MANAGEMENT ORDER NO. 92
(Memorandum Opinion and Order on post-trial
motions in Mitchell v. AbbVie, No. 14 C 9178)
MATTHEW F. KENNELLY, District Judge:
Plaintiff Jesse Mitchell's case was the first "bellwether" case to be tried to a jury
verdict in this multidistrict litigation (MDL) proceeding. Plaintiffs in the proceeding allege
that defendants, manufacturers of testosterone replacement therapy (TRT) drug
products, have misleadingly marketed their drugs. According to plaintiffs, although TRT
products are considered safe and effective for the treatment of "classical
hypogonadism" (low testosterone levels in the blood and associated signs and
symptoms resulting from certain recognized medical conditions), defendants have
falsely represented in their marketing and promotional materials that TRT is safe and
effective for the treatment of age-related hypogonadism (low testosterone levels in the
blood and associated signs and symptoms resulting from the normal male aging
process). Plaintiffs also assert that defendants failed to provide adequate warnings
about the risk that using TRT could increase venous thromboembolisms (blood-clotting
injuries in the veins) and cardiovascular injuries like heart attacks and strokes. At trial,
Mitchell presented evidence in support of his contentions that AndroGel, a TRT drug
manufactured by defendants AbbVie Inc. and Abbott Laboratories (collectively, AbbVie),
caused him to suffer a heart attack and that he would not having taken AndroGel but for
AbbVie's misleading marketing of the drug and failure to provide an adequate warning
label.
Mitchell, an Oregon resident, asserted three claims against AbbVie under
Oregon law: strict liability, negligence, and fraudulent misrepresentation. After
deliberating for several hours following a 13-day trial, the jury returned a split verdict.
On the strict liability and negligence claims, the elements of which Mitchell was required
to prove by a preponderance of the evidence, the jury found in favor of AbbVie. On the
fraudulent misrepresentation claim, the elements of which Mitchell was required to
prove by clear and convincing evidence, the jury found in favor of Mitchell. But despite
finding in Mitchell's favor on the fraudulent misrepresentation claim, the jury awarded
him zero dollars in compensatory damages. And despite awarding zero dollars in
compensatory damages, the jury awarded $150 million in punitive damages.
In their post-trial motions, both parties challenge aspects of the jury's verdict,
though neither side takes issue with the jury's findings on the strict liability and
negligence claims. AbbVie contends that it is entitled to judgement as a matter of law
on the fraudulent misrepresentation claim, both because the evidence at trial was
insufficient to support a finding of liability against AbbVie and because the jury's finding
of zero compensatory damages means that Mitchell failed to prove an essential element
of the claim. AbbVie also maintains that the punitive damages award should be
vacated, both because it was not supported by the evidence at trial and because
punitive damages may not be awarded in the absence of compensatory damages.
Mitchell, for his part, argues that the evidence at trial supports the jury's liability verdict
2
on the fraudulent misrepresentation claim and its award of punitive damages. He
contends, however, that the award of zero compensatory damages is contrary to the
weight of the evidence presented at trial, and he urges the Court either to amend the
judgment and award Mitchell the undisputed amount he paid in medical bills or to hold a
new trial solely on the issue of compensatory damages. Neither party contends that the
jury's verdict is internally inconsistent, but the Court noted this point when it first
reviewed the parties' motions and asked them to address it in their response and reply
briefs. For the reasons discussed below, the parties' attempts to reconcile the jury's
findings are unconvincing. Because the Court concludes that the jury's findings are
logically incompatible, the Court vacates the jury's verdict on the fraudulent
misrepresentation claim and the compensatory and punitive damages awards and
orders a new trial on that claim.
Background
A.
Evidence at trial
Neither party challenges the jury's verdicts on the strict liability or negligence
claims, so for the purposes of this ruling, the Court focuses on the evidence presented
in support of the fraudulent misrepresentation claim. At trial, Mitchell presented
testimony from AbbVie employees and documentary exhibits of promotional materials
tending to show that AbbVie marketed AndroGel for the treatment of age-related
hypogonadism despite its knowledge that the drug had not been proven both safe and
effective for that use. The evidence indicated that AbbVie sought to expand the market
for AndroGel by directly communicating to physicians—through direct sales calls and
face-to-face visits, distribution of physician treatment guidelines, and hiring of key
3
opinion leaders—that TRT was safe and effective for the treatment of age-related
hypogonadism.
Mitchell also presented evidence showing that his own prescribing physician, Dr.
Gordon Canzler, had been visited by AbbVie sales representatives on over 100
occasions and had received promotional materials touting TRT's safety and its
effectiveness in treating age-related hypogonadism. Notes from sales calls to Dr.
Canzler from AbbVie representatives indicated that Dr. Canzler was receptive to
AbbVie's message, and Dr. Canzler testified that he considers sales representatives to
be a valuable resource. As AbbVie notes, though, Dr. Canzler also testified that he
based his particular prescribing decisions for individual patients on a combination of
factors, including his own experience with a particular medication, rather than
something a sales representative would have told him. For his part, Mitchell
emphasizes that Dr. Canzler's testimony about his understanding of AndroGel's
purported benefits echoes the representations in AbbVie's marketing that TRT is
effective at improving stamina, strength, energy, and libido.
AbbVie denies that its marketing materials gave Dr. Canzler or Mitchell a false
impression about AndroGel's risks or benefits, and AbbVie emphasizes Dr. Canzler's
testimony that he told patients that TRT use presented a risk of heart attack. Dr.
Canzler also testified, however, that at the time he prescribed AndroGel for Mitchell, he
would not have mentioned testosterone as being a special risk factor for heart attack or
stroke. And Mitchell himself testified that he had an expectation that AndroGel had
been proven safe and effective for the treatment of his condition and that Dr. Canzler
never warned him of the risk that AndroGel could cause him to suffer a heart attack.
4
According to Mitchell's testimony, he would not have taken AndroGel had he been
aware that it could cause heart attacks.
To prove that AndroGel is generally capable of causing heart attacks and that it
caused his own heart attack, Mitchell relied at trial on the expert testimony of Dr.
Hossein Ardehali, a cardiologist at Northwestern Memorial Hospital in Chicago. Dr.
Ardehali acknowledged that Mitchell's medical history revealed a number of risk factors
for heart attack, apart from TRT use, including a 34-year history of smoking, high blood
pressure, high cholesterol, high triglycerides, obesity, lack of exercise, and a family
history of heart disease. And he conceded that those risk factors would be sufficient to
cause Mitchell to suffer a heart attack even if he had never taken AndroGel. But Dr.
Ardehali maintained that AndroGel was the cause of the heart attack Mitchell actually
suffered. Specifically, he testified that the type of blood clot that caused the heart attack
would be unlikely to occur in patients as young as Mitchell, and he opined that AndroGel
likely worked synergistically with Mitchell's other preexisting risk factors to produce the
blood clot that caused the heart attack.
There was no dispute between the parties at trial that the medical bills associated
with Mitchell's heart attack amounted to $136,408. Mitchell also testified that the heart
attack caused severe physical pain and put him out of work for three months and that
his absence from work generated anxiety about his financial situation. According to Dr.
Ardehali, Mitchell's heart attack has increased his risk of suffering a future heart attack,
and Mitchell testified that this increased risk has been an additional source of anxiety.
B.
Jury instructions and verdict
The Court instructed the jury on the elements Mitchell was required to prove in
5
order for the jury to find in his favor on claims for strict liability, negligence, and
fraudulent misrepresentation. The instruction for the fraudulent misrepresentation claim
told the jury that it could find in Mitchell's favor only if he proved each of five elements
by clear and convincing evidence: (1) "AbbVie made a false representation regarding a
material matter[;]" (2) "AbbVie knew that the representation was false or made the
representation recklessly, without knowing if it was true or false[;]" (3) AbbVie knew that
it was misleading Mr. Mitchell and/or his physician, or recklessly disregarded whether it
was misleading Mr. Mitchell and/or his physician[;]" (4) Mir. Mitchell and/or his physician
reasonably relied on the representation[;]" and (5) "Mr. Mitchell was damaged as a
direct result of his and/or his physician's reliance on the representation." Jury
Instructions at 16. The next page of the jury instructions was titled "Causation" and
stated that "[e]ach of Mr. Mitchell's claims requires him to prove by a preponderance of
the evidence (for the first and second claims) or by clear and convincing evidence (for
the third [fraudulent misrepresentation] claim) that AbbVie's conduct was a cause of his
heart attack." Id. at 17.
The Court also instructed the jury on the issues of compensatory damages and
punitive damages. Regarding compensatory damages, the instructions provided,
among other things: "If you find in favor of Mr. Mitchell and against AbbVie on one or
more of Mr. Mitchell's claims, then you must decide whether Mr. Mitchell has been
damaged and, if so, the amount of his damages arising from his heart attack." Id. at 19.
The Court further instructed the jury that Mitchell was seeking an award of punitive
damages in addition to compensatory damages. The punitive damages instruction
stated: "If you find that AbbVie's conduct was fraudulent, intentional, or willful and
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wanton and that AbbVie's conduct proximately caused injury to Mr. Mitchell, and if you
believe that justice and the public good require it, you may award an amount of money
that will punish AbbVie and discourage it and others from similar conduct." Id. at 21.
The instructions defined "willful and wanton conduct" as "a course of action that shows
actual or deliberate intention to harm or that, if not intentional, shows an utter
indifference to or conscious disregard for the safety of others." Id.
The jury found in favor of AbbVie on the strict liability and negligence claims and
in favor of Mitchell on the fraudulent misrepresentation claim. With respect to damages,
the jury awarded zero dollars in compensatory damages—writing in "0" in the spaces
provided for non-economic damages and economic damages—and awarded
$150,000,000 in punitive damages. After the Court excused the jury, counsel for
AbbVie moved for immediate entry of judgment in AbbVie's favor based on the jury's
award of zero dollars in compensatory damages. The Court entered judgment on the
verdict the jury delivered and directed counsel for AbbVie to raise his contentions in an
appropriate post-trial motion.
C.
Post-trial motions
Both parties have filed post-trial motions challenging the jury's verdict. Mitchell
moves to amend the judgment under Federal Rule of Civil Procedure 59(e), contending
that the jury's award of zero compensatory damages was against the weight of the
evidence presented at trial. He maintains that the jury's finding of liability on the
fraudulent misrepresentation claim is supported by the evidence at trial but that the
Court should amend the compensatory damages award to account for the medical bills
resulting from his heart attack, the amount of which is not in dispute. In the alternative,
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he requests a new trial on the issue of compensatory damages.
AbbVie has filed its own motion under Rule 59(e), or in the alternative, under
Rule 50(b). It asks the Court to strike the jury's punitive damages award, arguing that
punitive damages may not be awarded in the absence of compensatory damages and
that the evidence at trial does not support an award of punitive damages. In addition,
AbbVie urges the Court to enter judgment in AbbVie's favor on the fraudulent
misrepresentation claim. It argues that the jury found against Mitchell on a required
element of that claim when it awarded zero compensatory damages and also that it is
entitled to judgment as a matter of law on the claim based on the lack of evidence at
trial. In the alternative, AbbVie asks the Court to enter a judgment of liability for Mitchell
with an award of zero damages.
Discussion
A.
Inconsistency of the verdict and the need for a new trial
On its face, the jury's verdict appears to be internally inconsistent. By finding for
Mitchell on the fraudulent misrepresentation claim, the jury necessarily found that
Mitchell proved each element of that claim by clear and convincing evidence, including
that Mitchell "was damaged as a direct result of his and/or his physician's reliance on
[AbbVie's false] representation." Jury Instructions at 16. But, it appears, by awarding
zero compensatory damages, the jury also found that Mitchell had not "been damaged."
Id. at 19 ("If you find in favor of Mr. Mitchell . . ., then you must decide whether Mr.
Mitchell has been damaged and, if so, the amount of his damages arising from his heart
attack."). Of course, it would violate the precepts of logic to assert simultaneously that a
party has been damaged and has not been damaged. Ordinarily, "when jury verdicts
8
are logically incompatible, thereby indicating that the jury was confused or abused its
power, the district court errs when it fails to order a new trial." Stone v. City of Chicago,
738 F.2d 896, 899 (7th Cir. 1984); see also Thomas v. Stalter, 20 F.3d 298, 303 (7th
Cir. 1994) (remanding for new trial on liability and damages where "jury's finding of
liability [was] in irreconcilable conflict with its award of zero damages").
Both parties deny that the jury's verdict is inconsistent. Each side seeks to
reconcile the verdict by treating those aspects of the jury's verdict that it finds favorable
as the jury's true or correct findings while treating the jury's unfavorable findings as
legally erroneous or unreflective of the jury's intent. It is true that a court "must attempt
to reconcile the jury's findings, by exegesis if necessary." Gallick v. Baltimore & O. R.
Co., 372 U.S. 108, 119 (1963). But a court can only harmonize the jury's answers if
doing so is "possible under a fair reading of them." Id. What a court cannot do is "treat
one verdict ([such as] the lack of a compensatory award) as the jury's 'true' disposition
to which the other verdict must be confirmed." Timm v. Progressive Steel Treating, Inc.,
137 F.3d 1008, 1010 (7th Cir. 1998); see also Am. Cas. Co. of Reading, Pa. v. B.
Cianciolo, Inc., 987 F.2d 1302, 1305 (7th Cir. 1993) ("[T]here is no priority among
inconsistent verdicts—the judge may not assume that the first answer is the 'authentic'
one with which later answers must be reconciled.").
Both parties' attempts to provide a consistent account of the jury's verdict, and
thereby avoid the need for a new trial on liability and damages, are unconvincing.
Mitchell contends that the jury's finding in his favor on the fraudulent misrepresentation
claim shows that the jury found by clear and convincing evidence that AbbVie's conduct
caused his heart attack. Because the amount he paid in medical bills as a result of that
9
heart attack is undisputed, Mitchell contends that the award of zero compensatory
damages is "clearly the result of an oversight." Pl.'s Mot. to Amend J. at 10. He urges
the Court to correct that oversight by awarding him the undisputed amount of his
medical bills or ordering a new trial on damages. But the Court may not treat the jury's
finding with respect to the fraudulent misrepresentation claim as the "true" or "authentic"
answer with which the compensatory damages award must be reconciled. "One could
as readily say," as AbbVie does, that the award of zero damages requires a liability
finding in AbbVie's favor. Timm, 137 F.3d at 1010. Mitchell points to cases in which
courts have adjusted damages awards where the amount of damages was undisputed
or required by law or where the jury clearly overlooked an item of evidence in its
damages calculation. But none of those cases involved an award of zero damages that
conflicted with, and thus called into question, the jury's liability verdict. See, e.g., Liriano
v. Hobart Corp., 170 F.3d 264, 272 (2d Cir. 1999) (where jury found for plaintiff on
liability and awarded damages, district court was permitted to increase award to account
for hospital bill jury failed to include in its damages calculation); Taylor v. Green, 868
F.2d 162, 165 (5th Cir. 1989) (without establishing that he was entitled to compensatory
damages, plaintiff proved that defendants violated his constitutional rights, in which
case he was entitled by law to nominal damages); LaSalle Nat. Bank v. Massachusetts
Bay Ins. Co., No. 90 C 2005, 1997 WL 619856, at *3 (N.D. Ill. Sept. 30, 1997) (ordering
new trial on issues of damages where liability verdict was "unassailable" but amount of
damages apportioned to each plaintiff was nonsensical and against weight of evidence
at trial).
Just as the Court may not give priority to the jury's finding that Mitchell was
10
damaged for purposes of the fraudulent misrepresentation claim, the Court may not, as
AbbVie proposes, treat the award of zero compensatory damages as the jury's
"authentic" finding that negates the liability verdict. The three district court cases
AbbVie relies upon to advance this argument are either unpersuasive or do not support
its position. In Ira Green, Inc. v. Military Sales & Service Co., No. CAQ 10-207-M, 2013
WL 5912525, at *2 (D.R.I. Oct. 16, 2013), the district court determined that it was a
clerical mistake to enter judgment for the plaintiff on its defamation claim where
damages were an essential element of that claim and the jury had concluded that the
allegedly defamatory statements had not resulted in any damages. Unlike in this case,
the jury in Ira Green was not asked to answer the general question of whether the
plaintiff had satisfied every element of his claim (including damages). Rather, "the
defamation questions broke out the damages element[,] and the jury answered 'none' to
that final question [of what damages, if any, resulted from the defamation]." Id. The
jury's verdict in that case clearly indicated, without any inconsistency, that the plaintiff
had proven most, but not all, of the elements of his claim, and it was thus appropriate to
enter judgment in the defendant's favor on that claim. Id.
AbbVie cites two cases in which courts appeared to vacate a jury's liability finding
because the jury simultaneously awarded zero compensatory damages, but neither
court's reasoning is persuasive. See Strange v. Collins, No. 04-4017, 2007 WL
1412541, at *2 (C.D. Ill. May 7, 2007); Calderon v. Perfect Equip. & Prod. Supply, Inc.,
No. CIV.05-2179 RLA, 2008 WL 3992784, at *1 (D.P.R. Aug. 22, 2008). In Strange, the
magistrate judge reasoned that "because damages are an essential element of a tort
claim, the finding of zero damages means that plaintiffs failed to meet their burden of
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proof[,]" despite the jury's finding in favor of one of the plaintiffs on his defamation per
se claim under Illinois law. Strange, 2007 WL 1412541, at *2. The magistrate judge
cited no authority in support of that conclusion and did not mention whether the jury was
instructed that damages was an essential element of the plaintiff's defamation per se
claim. The Court is skeptical that the jury in that case would have been instructed that
damages was an essential element, given that a "plaintiff need not plead or prove actual
damage . . . to recover" for defamation per se under Illinois law. Bryson v. News Am.
Publications, Inc., 174 Ill. 2d 77, 87, 672 N.E.2d 1207, 1214 (1996). In any event,
because there is no discussion in Strange of whether the jury's findings were consistent
in light of the instructions given, the decision carries no persuasive weight. In Calderon,
the jury found in favor of the plaintiff for her claim under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 20003-2(a), but the court vacated the jury's award of punitive
damages because the jury did not award any compensatory damages. Calderon, 2008
WL 3992784, at *1. But in vacating the punitive damages award, the court also, without
any explanation, vacated the entire judgment. Without an explanation of why the court
vacated the jury's liability award, Calderon also has no persuasive value.
AbbVie attempts to reconcile the jury's findings not by attributing one or more of
its answers to oversight but by parsing the language of the jury instructions to find an
interpretation of those instructions that would render the jury's findings consistent.
Despite AbbVie's efforts, however, the Court concludes that the jury's findings cannot
be considered consistent under any "fair reading" of the instructions and the jury's
findings. Gallick, 372 U.S. at 119.
AbbVie first attempts to harmonize the jury's findings by pointing to the following
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portion of the jury instruction on compensatory damages: "If you find in favor of Mr.
Mitchell and against AbbVie on one or more of Mr. Mitchell's claims, then you must
decide whether Mr. Mitchell has been damaged and, if so, the amount of his damages
arising from his heart attack." Jury Instructions at 19 (emphasis added). AbbVie
contends that the jury might have inferred from that instruction that it could find for
Mitchell on liability without finding that he suffered any damages. Read in isolation, the
quoted portion of the jury instruction may have been drafted inartfully. 1 But AbbVie's
proposed account of the jury's reasoning cannot be squared with the jury instructions as
a whole, which is how the instructions must be considered. The instruction on
compensatory damages stated that the jury need not consider the issue of
compensatory damages unless it found in favor of Mitchell on one of his claims. And
the instruction regarding the elements of the fraudulent misrepresentation claim, the
claim in which the jury found in Mitchell's favor, contained a clear and unequivocal
statement that one of the elements of fraudulent misrepresentation was a finding that
Mitchell "was damaged." Id. at 16. That is, in order for the jury to find in Mitchell's favor
on the fraudulent misrepresentation claim, thereby presenting the need to consider the
question of the amount of damages to award, the jury had to find that he "was
damaged." In addition, the instruction labeled "causation" emphasized to the jury that
each of Mitchell's claims, including the fraudulent misrepresentation claim, required him
to prove that AbbVie's conduct was a cause of his heart attack. 2 Thus the notion that
the jury must have believed it could find in favor of Mitchell on the fraudulent
1
In retrospect, it might have made more sense to use the term "injury" in
the elements instructions for the various claims and the term "damages" only in the
damages instructions, but no party made such a request.
2
The Court discusses AbbVie's response to this point below.
13
misrepresentation claim without finding that he suffered any damages is directly
inconsistent with at least two express provisions of the instructions. In addition, the
instruction regarding punitive damages clearly stated that the jury could award punitive
damages only if it found that AbbVie's conduct has proximately caused injury to Mitchell.
Thus AbbVie's theory that the jury found in Mitchell's favor despite finding that he
suffered no damages is also inconsistent with the jury's award of punitive damages.
AbbVie next contends that the jury could have understood the word "damaged"
to have different meanings in the instruction on the elements of fraudulent
misrepresentation and in the instruction on compensatory damages, such that there is
actually no conflict between the jury's findings on those issues. According to AbbVie,
for purposes of its liability finding on the fraudulent misrepresentation claim, the jury
could have found that Mitchell was "damaged" in the conventional sense that he in fact
suffered some form of harm, while simultaneously, for purposes of compensatory
damages, finding that the harm he suffered was not economically compensable and
thus did not constitute "legal damages." In addition to its reliance on the fact that the
term "damaged" has these two different meanings in common usage, AbbVie points out
that the instruction on compensatory damages stated that if the jury found in Mitchell's
favor and found that he had been damaged, the jury would have to consider only "the
amount of his damages arising from his heart attack." Id. at 19. By contrast, the
damages element included in the instructions for the fraudulent misrepresentation claim
stated only that the jury had to find that Mitchell "was damaged as a direct result of his
and/or his physician's reliance on the representation." Id. at 16. Thus, AbbVie
contends, the limitation on the type of compensatory damages the jury could award
14
provides a way to reconcile the jury's verdict: the jury must have found that Mitchell was
damaged in some way as a result of his or his physician's reliance on AbbVie's
misrepresentations but must not have found that AbbVie caused any injury arising from
his heart attack.
Though AbbVie's attempt to reconcile the jury's verdict appears plausible at first
glance, there are at least two problems with its account. First, AbbVie does not provide
an example of the type of non-compensable damage the jury might have found Mitchell
to have suffered "as a direct result of his and/or his physician's reliance" on AbbVie's
alleged misrepresentation. AbbVie does not, and hardly could, contend that a heart
attack requiring medical treatment is a not an economically compensable injury. And
Mitchell does not allege, and did not present evidence at trial of, any harm or damage
apart from the heart attack he suffered and harms associated with that injury. Thus
even if the Court could read the jury's verdict as finding that Mitchell suffered some
harm other than a heart attack, that would not be a "theory consistent with the evidence"
at trial. E.E.O.C. v. Mid-Continent Sec. Agency, Inc., No. 99 C 5381, 2001 WL 800089,
at *2 (N.D. Ill. July 12, 2001) (Kennelly, J.).
Second, AbbVie's theory—that the jury found Mitchell suffered some harm other
than his heart attack as a result of his reliance on AbbVie' misrepresentations—is
directly at odds with the Court's instruction on causation. That instruction provided that
"[e]ach of Mr. Mitchell's claims requires him to prove . . . by clear and convincing
evidence (for the [fraudulent misrepresentation] claim) that AbbVie's conduct was a
cause of his heart attack." Jury Instructions at 17. Thus, based on that instruction, the
jury could not enter a liability verdict for Mitchell on the fraud claim without finding that
15
AbbVie's conduct caused his heart attack, as opposed to some other unspecified injury.
AbbVie concedes that the causation instruction indicated that the jury had to find
that AbbVie's conduct caused Mitchell's heart attack in order to enter a liability verdict
on the fraudulent misrepresentation (or any other) claim. AbbVie contends, however,
that it is possible that the jury found that AbbVie's conduct caused Mitchell's heart attack
but that the heart attack was not the "direct result of his and/or his physician's reliance"
on AbbVie's misrepresentation for purposes of the fraud claim. On this proposed
interpretation, the jury would have had to find that Mitchell's and/or his physician's
reliance on AbbVie's misrepresentation caused some unspecified harm other than
Mitchell's heart attack (in order to find for Mitchell on the fraudulent misrepresentation
claim) and that some other conduct of AbbVie's caused the heart attack. But this
interpretation is also untenable. AbbVie does not explain what conduct of AbbVie's,
other than its alleged misrepresentations, could have been the basis for the jury's
finding that AbbVie's conduct caused his heart attack. It is difficult to imagine what
other conduct the jury could have believed was the cause of Mitchell's heart attack,
especially in light of the jury's findings in AbbVie's favor on the claims for negligence
and strict liability. In addition, AbbVie's proposed interpretation does not explain how
the jury could consistently award zero compensatory damages. To comply with the
causation instruction, the jury would have to find that AbbVie's conduct caused
Mitchell's heart attack in order to find for him on the fraudulent misrepresentation claim.
But, as discussed above, the jury could not then conclude, consistently, that "the
amount of damages arising from his heart attack" was zero.
In a footnote, AbbVie says that the jury might have understood a finding of
16
causation not to be an element of his fraudulent misrepresentation claim but rather a
prerequisite to awarding compensatory damages. AbbVie says this account is plausible
because the causation instruction came after the fraudulent misrepresentation
instruction but before the compensatory damages instruction. This is not a plausible
interpretation of the verdict. The causation instruction expressly provided that causation
was an element of each of Mitchell's claims. See Jury Instructions at 17 ("Each of Mr.
Mitchell's claims requires him to prove . . . that AbbVie's conduct was a cause of his
heart attack.") (emphasis added). And even if one were to accept AbbVie's hypothesis
that the jury understood the causation instruction to apply only to issues discussed later
in the instructions, AbbVie does not explain why the jury would believe that inadequate
evidence of causation precluded an award of compensatory damages but still permitted
an award of punitive damages. (Both damages instructions came after the causation
instruction.)
AbbVie points to cases in which courts have reconciled a finding of liability with
an award of no compensatory damages, but those cases differ from this one in
important respects. Significantly, in this case, the Court instructed the jury that damage
to Mitchell was a necessary element of his claim. The case is unlike a breach-ofcontract case, for example, where it is possible for a jury to find that the defendant
breached its obligations without injuring the plaintiff. See Prime Choice Servs., Inc. v.
Schneider Logistics Transloading & Distribution, Inc., 861 F.3d 633, 635 (7th Cir. 2017).
A jury in a case like that could conclude, for example, that the plaintiff failed to mitigate
the damages that allegedly resulted from the breach. See id. There is no similar theory
that would reconcile the jury's findings in this case.
17
The Fourth Circuit's unpublished opinion in Vigilant Insurance Co. of New York v.
McKenney's Inc., 524 F. App'x 909 (4th Cir. 2013), which AbbVie cites, does address an
award of zero damages in the context of a liability finding on a negligence claim, for
which damages or injury was a necessary element. But that case resembles the Ira
Green case discussed above and is distinguishable for the same reason. In Vigilant,
the trial court had instructed the jury that any failure to exercise due care would
"constitute negligence or carelessness" and that if the jury found that negligence or
carelessness existed, it would have to determine whether the negligence or
carelessness was a proximate cause of the damages sustained by the plaintiff. Id. at
913 n.4. Among other things, the verdict form in that case asked the jury to issue a
verdict on the "claim for negligence" and then to state the amount of damages, "if any"
to which the plaintiff was entitled if it prevailed on one of its claims. Id. at 912–13. As in
Ira Green, the court in Vigilant concluded that the instructions could "reasonably be
understood to have split the elements of negligent conduct from the element of
negligence damages, telling the jury that if it first found [the defendant] to have been
negligent, it should then proceed to consider whether [the plaintiff] was entitled to
damages." Id. at 912. That reconciling interpretation was possible in Vigilant because
of the dual meanings of negligence: carelessness or breach of the duty of care, on one
hand, and a complete tort with necessary elements, including damages, on the other
hand. Because of these two meanings, the jury could have reasonably concluded that it
could find in favor of the plaintiff on its "claim for negligence" if it found that the
defendant acted negligently, without finding that the negligence caused the plaintiff any
injury. By contrast, in this case, the instructions made clear that to find in favor of
18
Mitchell on his claim for fraudulent misrepresentation, the jury had to find that he proved
each element, including damage, by clear and convincing evidence.
The irreconcilable conflict between the jury's finding of liability on the fraudulent
misrepresentation claim and award of zero compensatory damages requires a new trial
on this claim. See Thomas, 20 F.3d at 303. Because the jury's punitive damages
award depends upon, at least, the viability of the jury's liability finding, the Court must
vacate that award as well. Mitchell argues that the Court can limit a new trial to the
issue of compensatory damages, but none of his cited authority supports limiting a new
trial to that issue. In Rosario v. Livaditis, 963 F.2d 1013, 1022 (7th Cir. 1992), the
Seventh Circuit remanded for a new trial solely on the issue of damages, because an
award of zero damages was contrary to law and inconsistent with the jury's finding of
liability on the claims the plaintiffs brought under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962. But unlike this case, there was no need for a
retrial on liability in Rosario, because the jury's liability finding was supported by ample
evidence in the record and was "left . . . unchallenged" by the defendants. Rosario, 963
F.2d at 1022. In the other cases Mitchell cites, new trials were appropriately limited to
the issue of damages because the erroneous damages awards were not inconsistent
with, and thus did not call into question, the jury's liability findings. See McClain v.
Owens-Corning Fiberglas Corp., 139 F.3d 1124, 1127 (7th Cir. 1998) (not abuse of
discretion to order new trial on damages based on determination that $100,000 was
inadequate and against weight of evidence in wrongful death case); Love v. Westville
Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996) (no error where district court ordered new
trial on damages after determining that victim of intentional discrimination on the basis
19
of disability was entitled to more than $1,000 in damages); LaSalle Nat. Bank v.
Massachusetts Bay Ins. Co., No. 90 C 2005, 1997 WL 619856, at *4 (N.D. Ill. Sept. 30,
1997) (ordering new trial on damages where liability verdict was "clear and consistent
with the evidence," but jury verdict on damages "ma[de] no sense"); Proler v. Modern
Equip. Co., 602 F. Supp. 1388, 1393 (E.D. Wis. 1985) (ordering new trial on damages
where jury's liability finding on patent infringement claim was supported by evidence in
record, but damage award of $75 million offended common sense).
Though neither party requests a new trial on liability and damages, Rule 59(d)
"empowers a judge to order a retrial 'for any reason that would justify granting one on a
party's motion.'" U.S. ex rel. Pileco, Inc. v. Slurry Sys., Inc., 804 F.3d 889, 892 (7th Cir.
2015) (quoting Fed. R. Civ. P. 59(d)). Although this order comes later than 28 days
after the entry of judgment (the time period in which the Court may order a new trial on
its own motion), a court is also permitted to grant a Rule 59 motion for a new trial for a
reason not stated in a the party's motion. Fed. R. Civ. P. 59(d) (requiring court to give
parties notice and opportunity to be heard and to specify reasons for new trial in its
order). Mitchell filed a timely motion for a new trial, and the Court notified both sides
during the August case management conference that they should address the issues of
whether the verdict was inconsistent and whether a new trial should be ordered. Neither
party contends that the Court lacks the authority to order a new trial on its own motion,
and the Court appears to have satisfied the requirements of Rule 59(d). In addition, the
Court concludes that it would be committing an error if did not order a new trial, Stone,
738 F.2d at 899, and that it is therefore appropriate to order a new trial on Mitchell's
fraudulent misrepresentation claim and on damages relating to that claim.
20
B.
Evidence in support of the finding against AbbVie on Mitchell's fraudulent
misrepresentation claim
As discussed above, the Court does not believe that the jury's award of zero
compensatory damages entitles AbbVie to judgment as a matter of law on the
fraudulent misrepresentation claim. The jury's compensatory damages award is,
indeed, in conflict with the finding required by its liability verdict that Mitchell "was
damaged," but it would be impermissible to assume that the finding implied by the jury's
damages award "is the 'authentic' one." Am. Cas., 987 F.2d at 1305.
AbbVie advances a second reason why it is entitled to judgment as a matter of
law on the fraudulent misrepresentation claim: it contends that Mitchell failed to present
sufficient evidence at trial to allow a reasonable jury to find in his favor on each element
of the claim. If AbbVie is correct, the Court would enter judgment as a matter of law on
the fraudulent misrepresentation claim (and also vacate the punitive damages award),
and there would no longer be any inconsistency to resolve. See id. ("A judge may
dissipate the inconsistency [in verdicts] by setting aside one of the conflicting verdicts, if
that verdict was unsupported by the evidence.").
To grant a motion for judgment as a matter of law, a court must find that "a
reasonable jury would not have a legally sufficient evidentiary basis to find for the [nonmoving] party." Fed. R. Civ. P. 50(a)(1). When considering a Rule 50 motion, a court
must view the evidence presented at trial "in the light most favorable to the party that
prevailed, drawing all reasonable inferences in [his] favor." Jamsports & Entm't, LLC v.
Paradama Prods., Inc., 382 F. Supp. 2d 1056, 1058 (N.D. Ill. 2005) (Kennelly, J.) (citing
Filipovich v. K & R Exp. Sys., Inc., 391 F.3d 859, 863 (7th Cir. 2004)).
The Court finds that the evidence at trial would permit a reasonable jury to find
21
that Mitchell proved each element of his fraudulent misrepresentation claim by clear and
convincing evidence. AbbVie argues that Mitchell failed to present any evidence
showing that AbbVie "made a material misrepresentation that was false." Strawn v.
Farmers Ins. Co. of Oregon, 350 Or. 336, 352, 258 P.3d 1199, 1209 (2011). Though
acknowledging that Mitchell put forth evidence suggesting that AbbVie's marketing was
misleading, AbbVie says Mitchell failed to identify any "actual false representations."
Defs.' Mot. at 16. The Court understands AbbVie to be arguing that Mitchell did not
identify any express representations that were false. But under Oregon law, a plaintiff
may bring a claim for fraudulent misrepresentation "even though the [alleged]
misrepresentation is only implied." Ogan v. Ellison, 297 Or. 25, 34, 682 P.2d 760, 765
(1984); Heverly v. Kirkendall, 257 Or. 232, 234, 478 P.2d 381, 382 (1970)
("Misrepresentation may be made by statements which are literally true but under the
circumstances create a false impression."). Mitchell therefore was not required to
identify an express statement about AndroGel that was false. A reasonable jury could
have credited, among other things, the opinion of Mitchell's expert, Dr. David Kessler,
that by touting the ability of TRT to treat age-related hypogonadism, AbbVie falsely
represented that AndroGel was safe and effective for that use.
A reasonable jury could also find that Dr. Canzler's reliance on AbbVie's
representations caused him to prescribe, and caused Mitchell to use, AndroGel.
AbbVie emphasizes that Dr. Canzler could not recall any particular TRT marketing
materials he received from TRT manufacturers, as well as his testimony that he made
his describing decisions for Mitchell on the basis of his own training, experience, and
medical judgment. But a reasonable jury could have concluded—based on the number
22
of interactions between Dr. Canzler and AbbVie sales representatives, notes indicating
that sales representatives viewed him as "receptive" to their message, his testimony
that sales representatives can be a valuable resource, and the similarity between his
understanding of TRT's benefits and the benefits promoted in AbbVie's marketing
materials—that AbbVie's representations about AndroGel's safety and efficacy for the
treatment of age-related hypogonadism played a significant role in Dr. Canzler's
prescribing decisions. AbbVie contends that representations about age-related
hypogonadism are irrelevant to this case because Dr. Canzler never expressly
diagnosed Mitchell with age-related hypogonadism. Dr. Canzler did testify, however,
that he believed at the time he prescribed AndroGel that Mitchell's low testosterone was
likely the result of aging, and thus AbbVie's age-related marketing is clearly relevant.
AbbVie also contends that its representations about AndroGel could not have
caused Mitchell to use the drug because he decided to do so even after Dr. Canzler
warned him that TRT use presented a risk of heart attack. But Dr. Canzler also testified
that he would not have mentioned testosterone as being a special risk factor for heart
attack at the time he prescribed AndroGel for Mitchell, and Mitchell did not recall any
warning from Dr. Canzler about the risk of heart attack caused by using AndroGel.
Indeed, he testified that he believed AndroGel was safe for him to use and that he
would not have taken it had he been warned of the drug's cardiovascular risks. Based
on that evidence, a reasonable jury could find by clear and convincing evidence that Dr.
Canzler relied upon AbbVie's misrepresentations about AndroGel's safety and efficacy
in the treatment of age-related hypogonadism and that his reliance caused Mitchell to
use the drug.
23
A reasonable jury could also find, based on the evidence at trial, that Mitchell's
use of AndroGel caused him to suffer a heart attack. AbbVie argues that no reasonable
jury could find that AndroGel was a "but for" cause of Mitchell's heart attack, because
Dr. Ardehali, Mitchell's only expert witness on the issue of causation, conceded that
Mitchell's preexisting cardiovascular risk factors were sufficient to cause his heart attack
even if he never took AndroGel. See Joshi v. Providence Health Sys. of Oregon Corp.,
342 Or. 152, 164, 149 P.3d 1164, 1170 (2006) (applying "but for" test and affirming
directed verdict for defendant where plaintiff's expert could not testify "to a reasonable
probability" that defendant's negligence caused plaintiff's stroke). But Dr. Ardehali's
acknowledgement that Mitchell's other risk factors could have caused his heart attack is
not inconsistent with a finding that the heart attack "would not have occurred but for
[AbbVie's] conduct." Id. at 1169. Dr. Ardehali stated only that Mitchell's other risk
factors could have caused his heart attack, not that they likely would have done so.
What actually happened, according to Dr. Ardehali, is that AndroGel worked with the
other risk factors to generate a blood clot that led to the heart attack. Dr. Ardehali
based that opinion on his understanding of how TRT affects patients with preexisting
risk factors, as well as his analysis of the particular type of blood clot that caused
Mitchell's heart attack. A reasonable jury could have credited Dr. Ardehali's opinion that
AndroGel was a cause of Mitchell's heart attack and found that it was clear and
convincing evidence that Mitchell likely would not have suffered his heart attack but for
his use of AndroGel.
The same evidence that would allow a jury to find in Mitchell's favor on the
fraudulent misrepresentation claim would also provide a basis for the jury to determine
24
that AbbVie knowingly misrepresented the safety of AndroGel and therefore engaged in
conduct that was "fraudulent" or showed a "conscious disregard for the safety of others"
and that ultimately resulted in Mitchell's heart attack. Thus the Court also denies
AbbVie's motion to set aside the punitive damages award for insufficient proof at trial. 3
Conclusion
For the reasons stated above, the Court grants in part and denies in part
AbbVie's motion to strike the punitive damages award and for entry of judgment as a
matter of law [dkt. no. 92], and grants in part and denies in part Mitchell's motion to
amend the judgment or in the alternative for a new trial [dkt. no. 93]. The Court vacates
the judgment in part, specifically the finding entered in favor of Mitchell on the claim for
fraudulent misrepresentation and the award of punitive damages. The Court orders a
new trial on Mitchell's claim for fraudulent misrepresentation, including damages relating
to that claim. The trial is set for March 5, 2018 at 9:45 a.m. The final pretrial
conference is set for February 28, 2018 at 3:30 p.m.
Date: December 22, 2017
________________________________
MATTHEW F. KENNELLY
United States District Judge
3
Because the Court is vacating the punitive damages award as a result of
the verdict's inconsistency, it need not reach the question, in this ruling, of whether a
punitive damages award can stand in the absence of an award of compensatory
damages.
25
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