Axelrod v. Anthem, Inc., Court of Appeals Cause No. 19A-PL-1171

Docket NºCourt of Appeals Cause No. 19A-PL-1171
Citation169 N.E.3d 131
Case DateApril 13, 2021
CourtCourt of Appeals of Indiana

169 N.E.3d 131

Randy C. AXELROD, M.D., Appellant-Plaintiff,
ANTHEM, INC. and all of its affiliates, WellPoint, Inc., and Amgen, Inc., Appellees-Defendants.

Court of Appeals Cause No. 19A-PL-1171

Court of Appeals of Indiana.

FILED April 13, 2021

Attorneys for Appellant: Kevin W. Betz, Sandra L. Blevins, Courtney Endwright, Chad H. Holler, Betz + Blevins, Indianapolis, Indiana

Attorneys for Anthem, inc.: Peter J. Rusthoven, John R. Maley, Hannesson I. Murphy, Kenneth J. Yerkes, Barnes & Thornburg, LLP, Indianapolis, Indiana

Attorney for Amgen, Inc.: Ellen E. Boshkoff, Faegre Baker Daniels, LLP, Indianapolis, Indiana

Shepard, Senior Judge.

Statement of the Case

1] Randy C. Axelrod, M.D., a former executive of WellPoint, Inc., sued Anthem Inc. and all of its affiliates, WellPoint, Inc., and Amgen, Inc. after his employment was terminated. He raised claims of wrongful discharge and six other grounds for relief.

[2] Pre-trial activity featured nine years of trial court hearings, dozens of depositions, and more than a million documents. The jury trial ran twenty days, and produced a quick verdict for the defense.

[3] Axelrod's motions for mistrial or new trial were denied prior to entry of final

[169 N.E.3d 135

judgment, and his post-trial motions were likewise denied. Axelrod now appeals, contending the trial court misapplied Trial Rule 60(B)(3). We affirm.


4] Axelrod presents three issues, which we restate as:
I. In its denial of relief, did the court misapply Rule 60(B)(3) ?

II. Did collective misconduct by counsel for WellPoint and Amgen result in a jury verdict that was unfairly procured?

III. Did the trial court abuse its discretion by denying Axelrod's Trial Rule 60(D) motion for post-trial discovery?

Facts and Procedural History

The Parties

[5] Anthem, an Indianapolis-based health care insurer, acquired Blue Cross and Blue Shield of Virginia in 2003. Anthem hired Axelrod that year as Vice President and General Manager of Healthcare Management for its Southeast Region, covering Virginia. He reported directly to Tom Snead, the President of Anthem's Southeast Region. WellPoint, another health care insurer, merged with Anthem in 2004 and the post-merger entity was known as WellPoint. Axelrod continued to report to Snead in Virginia. His responsibilities included Virginia, Georgia, and the Southeast Region.

[6] In 2005, Snead and Dr. Sam Nussbaum, WellPoint's Executive Vice President and Chief Medical Officer, nominated Axelrod as a potential successor to Nussbaum, though he later was eliminated as a candidate. That same year, WellPoint acquired New York-based Empire Blue Cross and Blue Shield. WellPoint then created an East Region which covered Virginia, Georgia, Maine, New Hampshire, Connecticut, and New York.

[7] WellPoint proceeded to fill various new management positions. Snead left WellPoint at the time of the merger. Dr. Michael Stocker, previously Empire's CEO, became WellPoint's East Region CEO. Gloria McCarthy, a former COO for Empire, was selected as COO of WellPoint's East Region and reported directly to her former colleague Dr. Stocker. Both McCarthy and Stocker were based out of New York. Tom Byrd, Senior Vice President of WellPoint in Virginia, was Axelrod's colleague.

[8] McCarthy selected her team of six executives for the East Region. There were two candidates for Vice President of Healthcare Management: Axelrod and Dr. Alan Sokolow. Byrd and Snead recommended Axelrod, and McCarthy had worked with Sokolow at Empire. McCarthy selected Axelrod and she was his direct supervisor. His responsibilities were to integrate the newly created East Region, which he began undertaking in January 2006.

[9] As for Amgen's connection to this litigation, it is a pharmaceutical company that manufactures various drugs including one named Aranesp. WellPoint and Amgen conducted business regarding clinical studies as well as products that could be administered to WellPoint's members.

Axelrod's Involvement in Development of Drug Fee Schedule

[10] In early 2006, Axelrod, Tim Miller, and others at WellPoint developed a special fee schedule for various cancer-related drugs. These included Aranesp, and Procrit, a similar drug manufactured by Ortho-Biotech, an Amgen competitor. The fee schedule adjusted the reimbursement differential for the two drugs and encouraged physicians to prescribe Procrit instead of Aranesp. Axelrod discussed the reimbursement

[169 N.E.3d 136

policy with WellPoint senior leaders including Nussbaum and McCarthy. WellPoint adopted the reimbursement policy in May 2006, also deciding to bar coverage for Aranesp unless an insured patient was allergic to Procrit.

11] Representatives from Ortho-Biotech approached Axelrod, asking him to testify in an injunction request they sought in an anti-trust lawsuit against Amgen concerning Aranesp and Procrit. In May 2006, WellPoint agreed that Axelrod could testify during Ortho-Biotech's case about WellPoint's pricing differentials, and it provided him with an attorney.1

Axelrod's Job Performance

[12] During the same timeframe, and within weeks of selecting him for the position, McCarthy began to complain about Axelrod's job performance and considered terminating him. She communicated such with her human resources representative Caroline Koziatek. Koziatek and her superior Randall Brown, former Executive Vice President of Human Resources for WellPoint, advised Stocker and McCarthy to give Axelrod more time. For his part, Brown was concerned about possible adverse reaction by those in Virginia to Axelrod's termination, because it would result in a lack of balance in executive representation in the East region.

[13] Two members of Axelrod's WellPoint team, Sokolow and Dan Finke, expressed concerns to McCarthy about Axelrod's performance. McCarthy followed up with Axelrod about those concerns, including his failure to fly to New York for her meetings.

[14] For his part, Axelrod consulted with Nussbaum, Snead, and Byrd in early 2006 about difficulties working with McCarthy, and he submitted his resume to a headhunter in February 2006. At that time, Nussbaum began mentoring him about a more productive working relationship with McCarthy, stressing the importance of attending meetings with her in person in New York.

[15] McCarthy contacted Byrd, expressing her high level of frustration with Axelrod's performance, but agreeing to give him more time. By late April 2006, though, McCarthy rated Axelrod's potential for termination as high.

Axelrod's Termination

[16] McCarthy called Axelrod on June 6, 2006 to discuss his job performance. He knew she was unhappy and later claimed she was unspecific and had not asked him to do anything differently. Byrd recalled Axelrod expressing frustration with McCarthy during this period. After the phone call, McCarthy decided to proceed with his termination. On July 10, 2006, she traveled to Virginia to inform him personally of her decision. Though McCarthy testified that the decision was hers alone and based on his performance, Axelrod contended that she was required to obtain approval from senior management.

[17] During these same months, Amgen had learned of WellPoint's differential reimbursement policy. While Axelrod was still employed, Jeff Baker, Amgen's National Account Director, set up a meeting with him. On the advice of counsel, that meeting was delayed until August 7, 2006 because Axelrod was scheduled to testify

[169 N.E.3d 137

in the anti-trust action. Baker testified that Amgen first learned about Axelrod's termination on July 11, 2006, when confirming the meeting with him. For years thereafter, Amgen sought to change WellPoint's policy, but it remains in place.

18] None of the deponents in this lawsuit were aware of any contact between Amgen and WellPoint about Axelrod's termination, so Axelrod relied on circumstantial evidence at trial. For example, a statement was made by Amgen's Jeff Baker to Mark Bowker, who had worked closely with Axelrod on the Aranesp decisions. Baker said "[Bowker] better watch himself or he'll find himself out of a job just like Randy Axelrod." Tr. Vol. 8, p. 185. Bowker's position was eventually eliminated.

[19] Axelrod also claimed that an Amgen PowerPoint slide demonstrated its role in his termination. On the final slide, this question and answer were displayed. "What is Amgen doing to reverse this decision? ... Dr. Randy Axelrod is no longer with WellPoint." Appellant's App. Vol. 2, pp. 120-121. Next, Axelrod designated email correspondence from Baker to a colleague in which he stated "[t]his work stuff is beginning to take it's [sic] toll on me. Hopefully that will get better now that the evil medical director was ousted (Dr. Axelrod.)". Id. at 121; Appellant's App.

Vol. 17, p. 222; Ex. P-109; Ex. Vol. 1, p. 184.

[20] Axelrod's firing set in motion certain termination steps. Though he was an employee at will, a contract known as the Executive Agreement governed his last position at WellPoint. The Executive Agreement provided contingencies for separation, including a severance benefit of approximately $400,000 if his employment was terminated other than for cause, in exchange for execution of a release of any claims against WellPoint and non-compete and non-solicitation agreements. Ex. P-1, Ex. Vol. 1, pp. 12-15.

[21] On the day of his termination in July 2006, Koziatek presented Axelrod with a release and waiver so he could...

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