Schering Corp. v. Illinois Antibiotics Co., 96-1359
| Decision Date | 09 August 1996 |
| Docket Number | No. 96-1359,96-1359 |
| Citation | 89 F.3d 357 |
| Parties | SCHERING CORPORATION, Plaintiff-Appellee, v. ILLINOIS ANTIBIOTICS COMPANY and Irving S. Rossoff, individually and doing business as Illinois Antibiotics Company, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steven M. Kowal (submitted on briefs), Roger H. Bickel, Burditt & Radzius, Chicago, IL, for Plaintiff-Appellee.
David F. Schmidt, Joseph J. Hasman, Peterson & Ross, Chicago, IL, Thomas W. Lacy, Taylorville, IL, for Defendants-Appellants.
Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.
This case is before us for the second time. The first time we held, on the appeal of the plaintiff, that the injunction against the defendants prohibited the sale of gentamicin for therapeutic use in powdered form and not just, as the district court had thought, in liquid form. 62 F.3d 903 (7th Cir.1995). That the defendants had violated the injunction if it reached the powdered form was not in dispute, so on remand the district court adjudged the defendants in contempt and by way of remedy ordered them to disgorge the profits of their violation to the plaintiff and to pay the plaintiff's attorneys' fees. The defendants' appeal raises a single issue, namely the exclusion of testimony by their lawyer concerning negotiations with the plaintiff's lawyers in which, according to the defendants' interpretation of that testimony, the plaintiff's lawyers acknowledged that the injunction reached only the liquid form of the drug.
That testimony had been excluded in the initial hearing before the district court, the hearing that had occurred before the first appeal. The defendants had not complained about that exclusion. They could, of course, have done so, without even having to file a cross-appeal. E.g., Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976); Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 593 n. 8 (7th Cir.1993). They would have argued that the excluded testimony should have been admitted as further evidence that the district judge had interpreted the injunction correctly. Having lost the first appeal, they are seeking to recoup their loss by presenting evidence previously excluded. The attempt comes too late. Had they thought when they were opposing the first appeal that the excluded testimony was material, they should have said so then, rather than hold the testimony back for later use should they lose, thus doubling the number of appeals.
Under the doctrine of the law of the case, a ruling by the trial court, in an earlier stage of the case, that could have been but was not challenged on appeal is binding in subsequent stages of the case. E.g., Cowgill v. Raymark Industries, Inc., 832 F.2d 798, 802 (3d Cir.1987). This rule, it is true, is ordinarily applied against a party that was the appellant in both appeals. The statement of it, however, is not so limited, see Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.1995), and we...
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...rather, stumbled in the execution of a claim such that the court could not review it. 10. But cf. Schering Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358–59 (7th Cir.1996) (Posner, C.J.) (The Seventh Circuit Court of Appeals held that the law of the case barred an appellant's claim whe......
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