Axelrod v. Anthem, Inc.
| Citation | 175 N.E.3d 282 |
| Decision Date | 21 July 2021 |
| Docket Number | Court of Appeals Case No. 19A-PL-1171 |
| Parties | Randy C. AXELROD, M.D., Appellant-Plaintiff, v. ANTHEM, INC. and all of its affiliates, WellPoint, Inc., and Amgen, Inc., Appellees-Defendants. |
| Court | Court of Appeals of Indiana |
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 Drinker Biddle & Reath, LLP, Indianapolis, Indiana
[1] In our recent opinion addressing this appeal, we held that the trial court did not misapply Indiana Trial Rule 60(B)(3), that the jury verdict against Axelrod was not unfairly procured, and that the trial court did not abuse its discretion by denying Axelrod's motion for post-trial discovery. See Axelrod v. Anthem, Inc. , 169 N.E.3d 131, 140 (Ind. Ct. App. 2021).
[2] Axelrod has filed a petition for rehearing, arguing that this Court "inaccurately cited" the trial court's June 27, 2017 order, which led to an "incorrect quote," and failed to address two contentions in our opinion. See Pet. for Reh'g, pp. 4, 7. We grant rehearing to clarify our opinion by addressing the contentions raised in Axelrod's petition. We confirm our original decision.
[3] While addressing Axelrod's assertion that the jury verdict had been unfairly procured due to witness tampering by opposing counsel, we highlighted Axelrod's difficulty in securing the testimony of out-of-state witnesses. It was apparent to this Court and the trial court that the problems Axelrod's counsel had experienced arose from the use of improper procedure to attempt to secure the testimony of those out-of-state witnesses. See Axelrod , 169 N.E.3d at 139. By directly quoting the trial court's language that "the subpoenas must be quashed as improper and illegal," we sought to convey what was evident to us–the referenced impropriety and illegality had to do with the failure to follow proper procedure and not with any criminal behavior or consequences.
[4] The trial court informed the parties outside the presence of the jury that the judge had drafted the order and it Tr. Vol. 8, p. 217.
Appellant's App. Vol. 9, p. 163.
[6] At the end of the day, we remain convinced, as was the trial court, that Axelrod has not established that the jury verdict was unfairly procured in this way and we set forth this additional language to put the matter to rest. This more complete picture of what transpired as respects Axelrod's missteps in procedure continues to leave us convinced that a new trial is not warranted. Neither the trial court nor this Court regarded Axelrod's work in trying to subpoena the Virginia witnesses as illegal in any criminal sense, just not in compliance with the applicable trial rules and the trial court's guidance.
[7] Next, Axelrod complains that our original opinion did not address two instances where opposing counsel violated the trial court's orders in limine. We address them in turn. First, Axelrod says that Amgen violated the court's order through testimony suggesting that the antitrust lawsuit between Ortho-Biotech and Amgen had settled prior to Axelrod's firing. As for WellPoint, he argues that counsel violated the order by displaying his EEOC charge and offering it in evidence without total redaction of references to his Jewish faith.
[8] Regarding the settlement testimony, the court's June 13, 2016 order imposed the following pertinent limitations:
5. Amgen's Third Motion in Limine related to information about Amgen's settlement of a 2008 antitrust lawsuit with Ortho Biotech Products, L.P., and the substance of the testimony Plaintiff gave in that lawsuit settlement is denied. Plaintiff, while still employed at WellPoint, testified as a fact witness in the antitrust lawsuit. He gave evidence in a deposition and later testified in a preliminary injunction hearing in June, 2006. Plaintiff's deposition testimony was subject to a protective order. His testimony at the preliminary injunction hearing was sealed. The Court denied the preliminary injunction. The antitrust suit continued and was subsequently settled. Amgen paid Ortho $200 million dollars to resolve the action. Plaintiff's theory of this wrongful termination lawsuit is that Plaintiff's testimony against Amgen in the antitrust lawsuit led to his firing and provided Amgen with a motive. Plaintiff will be allowed to testify about the substance of his testimony in the antitrust case to the extent he remembers what he said and also he may testify about the business relationship between Amgen and Wellpoint including his personal knowledge about that relationship. He will not be allowed to discuss the subsequent settlement of the case. If Defendants have access to the actual transcript, they may use it to cross examine the Plaintiff on these points.
Appellant's App. Vol. 4, pp. 71-72 (emphasis added).
[9] The timing of the settlement vis-à-vis Axelrod's firing was needed to establish Axelrod's theory of his claims. Harvey Felman was Amgen's Executive Director of National Accounts, and he testified during Axelrod's case-in-chief. On cross-examination, after Amgen's counsel asked Felman if he delayed meeting with Axelrod, he responded that the meeting was delayed until "probably the beginning of June" "when the lawsuit was settled or finalized." Tr. Vol. XIII, p. 212. Axelrod points to this testimony as a violation of the court's order.
[10] Later, on re-direct examination, Axelrod's counsel vigorously questioned Felman about the timing of the settlement, at one point stating, "You are telling me that you went through a lawsuit that you said was settled in May ..." Id. at 249. Counsel for Amgen objected, but the court replied, Id. After further questioning about the exact month in which the antitrust action was settled, counsel for Axelrod asked, "It was not settled in May, was it?" to which Felman replied that he did not know. Axelrod's counsel then said, "It was settled when Amgen paid $200 million." Id. at 250. Counsel for Amgen objected, citing the order in limine. The court replied, Id.
[11] At a sidebar, the following discussion ensued:
Tr. Vol. 13, p. 250-Tr. Vol. 14, p. 2.
[12] "A motion in limine is used as a protective order against prejudicial questions and statements being asked during trial." Clausen v. State , 622 N.E.2d 925, 927 (Ind. 1993). The ruling on a motion in limine is not final, however, as the ultimate admissibility of the evidence must be made by the court in the context of the trial itself. Id. Appellate courts have consistently held that to preserve error in the overruling of a pre-trial motion in limine, the appealing party also must have objected to the admission of the evidence when it was offered. Id.
[13] Amgen did not want evidence of the $200 million settlement before the jury and successfully obtained an order in limine to that effect. However, during direct examination, Amgen arguably opened the door to evidence about the fact of a settlement (but not its terms) when Felman testified that he waited to contact Axelrod until the lawsuit was settled or finalized. When counsel for Axelrod made the statement about the $200 million settlement, Amgen's objection was sustained, but counsel did not request that Axelrod's statement be stricken from the record. Ultimately, the evidence Amgen sought to withhold from the jury and conversely Axelrod wanted to introduce to the jury was...
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