The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-1184
consolidated with 11-1185
“BUDDY” CALDWELL, ATTORNEY GENERAL EX REL.
STATE OF LOUISIANA
VERSUS
JANSSEN PHARMACEUTICAL, INC., ET AL.
**********
APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 04-C-3967-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE
**********
PHYLLIS M. KEATY
JUDGE
**********
Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.
AFFIRMED.
Patrick C. Morrow
James P. Ryan
Jeffrey M. Bassett
Morrow & Morrow
Post Office Drawer 1787
Opelousas, Louisiana 70571-1787
(337) 948-4483
Counsel for Plaintiff/Appellee:
James D. “Buddy” Caldwell, Louisiana Attorney General
James B. Irwin
David W. O’Quinn
Kim E. Moore
Monique M. Garsaud
Douglas J. Moore
Irwin, Fritchie, Urquhart & Moore, LLC
400 Poydras Street, Suite 2700
New Orleans, Louisiana 70130
(504) 310-2100
Counsel for Defendants/Appellants:
Johnson & Johnson
Ortho-McNeil Janssen Pharmaceutical, Inc.
Kenneth W. DeJean
Attorney at Law
Post Office Box 4325
Lafayette, Louisiana 70502
(337) 235-5294
Counsel for Plaintiff/Appellee:
James D. “Buddy” Caldwell, Louisiana Attorney General
Robert Lyle Salim
Attorney at Law
1901 Texas Street
Natchitoches, Louisiana 71457
(318) 352-5999
Counsel for Plaintiff/Appellee:
James D. “Buddy” Caldwell, Louisiana Attorney General
L. Christopher Styron
Assistant Attorney General
Post Office Box 94005
Baton Rouge, Louisiana 70804-9005
(225) 326-6468
Counsel for Plaintiff/Appellee:
James D. “Buddy” Caldwell, Louisiana Attorney General
Michael W. Perrin
Fletcher V. Trammel
Bailey, Perrin & Bailey
440 Louisiana Avenue, Suite 2100
Houston, Texas 77002
(713) 425-7100
Counsel for Plaintiff/Appellee:
James D. “Buddy” Caldwell, Louisiana Attorney General
Kenneth T. Fibich
Fibich, Hampton, et al
1150 Bissonnet
Houston, Texas 77005
(713) 751-0025
Counsel for Plaintiff/Appellee:
James D. “Buddy” Caldwell, Louisiana Attorney General
Robert Cowan
Attorney at Law
440 Louisiana Avenue, Suite 2100
Houston, Texas 77002
(713) 425-7100
Counsel for Plaintiff/Appellee:
James D. “Buddy” Caldwell, Louisiana Attorney General
James T. Guglielmo
James C. Lopez
Guglielmo, Lopez, Tuttle
Post Office Drawer 1329
Opelousas, Louisiana 70571-1329
(337) 948-8201
Counsel for Defendants/Appellants:
Johnson & Johnson
Ortho-McNeil Janssen Pharmaceutical, Inc.
Thomas F. Campion
Drinker, Biddle & Reath, LLP
500 Campus Drive
Florham Park, New Jersey 07932-1047
(973) 360-1100
Counsel for Defendants/Appellants:
Johnson & Johnson
Ortho-McNeil Janssen Pharmaceutical, Inc.
Brian C. Anderson
Michael E. Stamp
Stephen D. Brody
O’Melveny & Myers, LLP
1625 Eye Street, Northwest
Washington DC 20006
(202) 383-5300
Counsel for Defendants/Appellants:
Johnson & Johnson
Ortho-McNeil Janssen Pharmaceutical, Inc.
KEATY, Judge.
The issue in these consolidated cases is whether the Attorney General, acting
with authority pursuant to the Louisiana Medical Assistance Programs Integrity
Law (MAPIL), La.R.S. 46:437.1 through 46:440.3, 1 and represented by private
attorneys, can successfully recover civil penalties from a pharmaceutical company
without proving damages. After a multi-day trial, the jury unanimously concluded
that the pharmaceutical company‟s aggressive marketing campaigns had violated
MAPIL, resulting in a civil penalty of $257,679,500. The pharmaceutical
company was also assessed $70,000,000 in attorney fees and $3,000,200 in costs.
From these judgments the pharmaceutical company appeals. Finding that the jury
was not manifestly erroneous in determining that the pharmaceutical company had
violated Subsection 438.3 of MAPIL, we affirm the trial court‟s judgment in that
regard. Finding that the trial court was not erroneous in its determination of when
interest should begin accruing on the penalty award and on the award of attorney
fees, we likewise affirm the trial court‟s judgment on the issue of interest.
FACTS AND PROCEDURAL HISTORY
The Attorney General of the State of Louisiana initially filed suit against
Janssen Pharmaceutica, Inc. 2 (Janssen) on September 16, 2004, in the Twenty-
Seventh Judicial District Court on a myriad of legal theories, a recitation of which
is not necessary for purposes of this appeal. Ultimately, the only issue presented at
trial was whether the defendant, Janssen, violated La.R.S. 46:438.3, a subsection of
MAPIL that prohibits persons from presenting, or causing to be presented, false or
1
The 1997 version of MAPIL applies to this matter.
2
At the time of trial, the defendants were Ortho-McNeil-Janssen Pharmaceuticals, Inc.,
and Johnson & Johnson, the parent company of Janssen Pharmaceutica, Inc. For purposes of this
opinion, defendants will be referred to collectively as “Janssen.”
fraudulent claims or misrepresentations to the Louisiana medical assistance
program funds.
After six years of litigation, the matter proceeded to trial by jury on
September 28, 29, and 30, 2010, and October 12 and 14, 2010. The jury was
presented with a plethora of evidence from both parties. At the conclusion of trial,
the jury determined that Janssen had violated MAPIL 35,542 times, and that each
violation was subject to a civil penalty of $7,250, resulting in a civil monetary
penalty of $257,679,500. At an ancillary hearing, the trial court assessed Janssen
with $70,000,000 in attorney fees and $3,000,200 in costs. The trial court denied
Janssen‟s request for judgment notwithstanding the verdict (JNOV) and motion for
new trial. From these judgments, Janssen appeals.
ISSUES PRESENTED
Janssen asserts eighteen assignments of error for our review. In answering
Janssen‟s appeal, the Attorney General raises one additional error. The
assignments of error presented by Janssen are:
I. The Trial Court Erred As A Matter Of Law When It Entered
Judgment Against Appellants Because The Trial Record Is
Insufficient To Establish A MAPIL Violation
II. The Trial Court Erred As A Matter Of Law By Allowing The
Attorney General To Pursue MAPIL Penalties Based On
Alleged FDA Regulatory Violations
III. The Trial Court Erred As A Matter Of Law By Allowing The
Attorney General To Pursue MAPIL Penalties Based On
Petitioning Activity Protected By The First Amendment To The
United States Constitution And Article I, Section 9 Of The
Louisiana Constitution
IV. The Judgment Violates The First Amendment To The United
States Constitution And Article I, Section 7 Of The Louisiana
Constitution By Punishing Constitutionally-Protected Speech
V. The Trial Court Erred By Excluding Scientific Evidence That
Supported The Accuracy Of The Scientific Opinions
Challenged By The Attorney General
2
VI. The Trial Court Erred By Excluding Evidence Of Conduct Of
The Attorney General And The Louisiana Department Of
Health And Hospitals Inconsistent With The Attorney
General‟s Litigation Position
VII. The Trial Court Erred By Excluding Testimony From
Appellants‟ Statistical Expert
VIII. The Trial Court Erred By Admitting The Informal And
Advisory DDMAC Warning Letter[3] And July 21, 2004 Letter
Into Evidence
IX. The Trial Court‟s Erroneous Evidentiary Rulings Denied
Appellants Due Process Of Law
X. The Trial Court Erred By Allowing The Attorney General‟s
Improper And Inflammatory Closing Argument, Which
Appealed To Prejudice Against Out-Of-State Corporations In
Violation Of Louisiana Law And The Due Process Clauses Of
The United States And Louisiana Constitutions
XI. The Trial Court Erred By Allowing The Attorney General To
Argue To The Jury That Proof Of Actual Damages To
Louisiana Medicaid Had Been Shown, When No Such Proof
Was Offered At Trial
XII. The Trial Court Erred By Failing To Instruct The Jury On The
Law Applicable To The Attorney General‟s Claim
XIII. The Trial Court Erred By Instructing The Jury On MAPIL‟s
Legislative Intent And Purpose, The Medical Assistance
Programs Fraud Detection Fund, Conspiracy And FDA
Regulations
XIV. The Trial Court Erred By Failing To Instruct The Jury On The
First Amendment And The Inapplicability Of FDA Regulations
To MAPIL
XV. The Trial Court Erred By Adopting A Verdict Form That
Allowed The Jury To Enter A Verdict Unsupported By Law
XVI. The Penalty Imposed By The Trial Court‟s Judgment Violates
The 8th And 14th Amendments To The United States
Constitution And Louisiana Constitution Article I, Section 2
3
DDMAC is an acronym for the Food and Drug Administration‟s (FDA) Division of
Drug Marketing, Advertising, and Communications. The DDMAC letter referenced throughout
the trial and in this brief refers to the initial advisory letter sent to Janssen by the FDA alerting
them to the problems with their labeling and/or marketing of Risperdal.
3
XVII. The Trial Court Erred By Awarding $70 Million In Attorneys
Fees And $3.2 Million In Costs To The Attorney General
XVIII. The Trial Court Erred When It Denied Appellants‟ Motion For
Judgment Notwithstanding The Verdict Or, In The Alternative,
A New Trial.
The assignment of error presented by the Attorney General in its answer to
Janssen‟s appeal is that: “The Trial Court Erred in Refusing to Award Interest
From Date of Judicial Demand on both The Judgment Rendered by The Jury and
The Award of Attorneys Fees by The Court.”
DISCUSSION
The resolutions of the myriad of issues in this case are primarily fact driven.
We will first address Janssen‟s assertion that the evidence presented was
insufficient to establish a claim under MAPIL. We will then address the errors
concerning the trial court‟s evidentiary rulings, the Attorney General‟s closing
arguments, the jury instructions and jury verdict form, the attorney fees and costs,
and the interest awarded. Once we have discussed these assignments of error, we
will turn our attention to the appropriateness of the trial court‟s denial of Janssen‟s
JNOV and motion for new trial. We will then address the assertion that the trial
court allowed the Attorney General to pursue MAPIL penalties based on alleged
FDA regulatory violations. Finally, we will address Janssen‟s constitutional
grievances. Ultimately, we conclude that the judgments should be affirmed in their
entirety.
Evidence Insufficient to Establish MAPIL
In its first assignment of error, Janssen asserts that the trial court erred when
it entered judgment against them because the trial record is insufficient to establish
a MAPIL violation. Specifically, they argue that Subsections A, B, and C of
La.R.S. 46:438.3 do not apply to the conduct challenged by the Louisiana Attorney
4
General and that the Attorney General failed to satisfy the threshold requirement of
proving or alleging $1,000 in actual damages, pursuant to La.R.S. 46:438.3(F).
For the following reasons, we find that this assignment lacks merit.
Determining whether a statute applies to a specific set of facts requires
judicial interpretation of the statute. The supreme court discussed statutory
interpretation by the judiciary in Pumphrey v. City of New Orleans, 05-979
(La. 4/4/06), 925 So.2d 1202, a case in which they determined whether a statute
exempted the City of New Orleans from a statutory penalty for non-payment and
untimely payment of insurance benefits. In examining the language of the
pertinent statute, they stated:
The fundamental question in all cases of statutory interpretation is
legislative intent and the ascertainment of the reason or reasons that
prompted the Legislature to enact the law. In re Succession of Boyter,
99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. The rules of
statutory construction are designed to ascertain and enforce the intent
of the Legislature. Id.; Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99),
739 So.2d 762, 766. Legislation is the solemn expression of
legislative will, and therefore, interpretation of a law involves
primarily a search for the Legislature‟s intent. La.Rev.Stat. § 1:4
(2004); La. Civ.Code art. 2 (2004); Lockett v. State, Dept. of Transp.
and Development, 03-1767, p. 3 (La.2/25/04), 869 So.2d 87, 90.
When a law is clear and unambiguous and its application does
not lead to absurd consequences, the law shall be applied as written
and no further interpretation may be made in search of the intent of
the Legislature. La. Civ.Code art. 9 (2004); Lockett, 03-1767 at p. 3,
869 So.2d at 90-91; Conerly v. State, 97-0871, p. 3-4 (La.7/8/98), 714
So.2d 709, 710-11. When the language of the law is susceptible of
different meanings, it must be interpreted as having the meaning that
best conforms to the purpose of the law, and the words of law must be
given their generally prevailing meaning. La. Civ.Code arts. 10 and
11 (2004); Lockett, 03-1767 at p. 4, 869 So.2d at 91; Ruiz v. Oniate,
97-2412, p. 4 (La.5/19/98), 713 So.2d 442, 444. When the words of a
law are ambiguous, their meaning must be sought by examining the
context in which they occur and the text of the law as a whole, and
laws on the same subject matter must be interpreted in reference to
each other. La.Rev.Stat. § 1:3 (2004); La. Civ.Code. arts. 12 and 13;
Lockett, 03-1767 at p. 4, 869 So.2d at 91.
The meaning and intent of a law is determined by considering
the law in its entirety and all other laws on the same subject matter
5
and placing a construction on the provision in question that is
consistent with the express terms of the law and with the obvious
intent of the Legislature in enacting it. Boyter, 99-0761 at p. 9, 756
So.2d at 1129; Stogner, 98-3044 at p. 5, 739 So.2d at 766. The statute
must, therefore, be applied and interpreted in a manner, which is
consistent with logic and the presumed fair purpose and intention of
the Legislature in passing it. Boyter, 99-0761 at p. 9, 756 So.2d at
1129. This is because the rules of statutory construction require that
the general intent and purpose of the Legislature in enacting the law
must, if possible, be given effect. Id.; Backhus v. Transit Cas. Co.,
549 So.2d 283, 289 (La.1989). Courts should give effect to all parts
of a statute and should not give a statute an interpretation that makes
any part superfluous or meaningless, if that result can be avoided.
Boyter, 99-0761 at p. 9, 756 So.2d at 1129. It is likewise presumed
that the intention of the legislative branch is to achieve a consistent
body of law. Stogner, 98-3044 at p. 5, 739 So.2d at 766.
Id. at 1209-10. The Pumphrey court further explained that “[i]t is a fundamental
principle in the construction of statutes that the meaning of a word or phrase may
be ascertained by the meaning of other words or phrases with which it is
associated.” Id. at 1211. “[T]he general words are not to be construed in their
widest extent, but are to be held as applying only to such classes of things of the
same general kind as those specifically mentioned.” Id. Finally, the Pumphrey
court stated:
Moreover, the law shall be applied as written, and therefore, a
court must give effect to the literal application of the language of a
statute, including its grammatical construction, except in the rare case
where such application will produce absurd or unreasonable results.
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109
S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989); La. Civ.Code art. 9. In
such manner, punctuation as well as grammatical construction in
general, although never relied upon to defeat the obvious intent, may
operate as an aid in the construction and interpretation of the statute.
Joy v. City of St. Louis, 138 U.S. 1, 32, 11 S.Ct. 243, 251, 34 L.Ed.
843 (1891).
Id. at 1211-12.
The manifest error standard of review applies to all factual findings,
including a finding relating to the factual sufficiency of evidence to
warrant application of a legal theory or doctrine. This standard of
review also applies to mixed questions of law and fact, such as the
issue of whether the facts found by the trier of fact trigger application
of a particular legal standard.
6
Williams v. Dutchtown Pharmacy, L.L.C., 08-2559, pp. 4-5 (La.App. 1 Cir.
9/11/09), 24 So.3d 221, 224 (citation omitted). Fundamental to an appellate
court‟s review of trial court judgments is the well-settled principle that an appellate
court cannot set aside a fact finder‟s finding of fact in the absence of manifest error
or unless it is clearly wrong. Johnson v. Morehouse Gen. Hosp., 10-387, 10-488
(La. 5/10/11), 63 So.3d 87.
In reviewing a factfinder‟s factual conclusions, an appellate court
must satisfy a two-step process based on the record as a whole: there
must be no reasonable factual basis for the trial court‟s conclusion,
and the finding must be clearly wrong. Kaiser v. Hardin, 06-2092
(La.4/11/07), 953 So.2d 802, 810; Guillory v. Insurance Co. of North
America, 96-1084 (La.4/8/97), 692 So.2d 1029, 1031. Where there
are two permissible views of the evidence, the factfinder‟s choice
between them cannot be manifestly erroneous or clearly wrong.
Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).
Id. at 96.
Janssen claims that the trial court disregarded MAPIL‟s provisions and
turned it into a sweeping consumer protection statute. The Attorney General
argues that MAPIL is a much broader statute than Janssen asserts, and the trial
court was correct in its interpretation of MAPIL‟s applicability to the instant case.
We must now determine whether the trial court‟s determination that Janssen could
be held liable for its conduct pursuant to MAPIL was reasonable. The relevant
provisions for purposes of this appeal are Subsections A, B, and C of La.R.S.
46:438.3, which stated:
A. No person shall knowingly present or cause to be presented a
false or fraudulent claim.
B. No person shall knowingly engage in misrepresentation to
obtain, or attempt to obtain, payment from medical assistance
programs funds.
C. No person shall conspire to defraud, or attempt to defraud, the
medical assistance programs through misrepresentation or by
7
obtaining, or attempting to obtain, payment for a false or
fraudulent claim.
This issue was raised in Defendant‟s motion for summary judgment, which
was decided by the trial court on January 7, 2010 and rendered on January 25,
2010. The trial court explained in its written reasons for ruling that it was denying
Janssen‟s motion for summary judgment on the Attorney General‟s MAPIL claim
based on the decision in “State of West Virginia ex rel. Darrell V. McGraw, Jr.,
Attorney General v. Johnson & Johnson et al., Civil Action No. 04-C-156, Circuit
Court of Brook County, West Virginia,” in which that court stated: “„[F]or the
purposes of determining an appropriate civil penalty, [that] Court conclude[d] as a
matter of law that whenever false or misleading promotional materials that concern
health [are] delivered to the public, or its healthcare providers, that such
promotional materials in and of [themselves] cause harm and injury.‟”
The trial court went on to state:
In accordance with the McGraw decision, this Court finds that the
analysis set forth in Hood is inapplicable to the plaintiff‟s MAPIL
claim, as proof of delivery to the public or to healthcare providers of
false or misleading promotional materials concerning Risperdal may
be used by the plaintiff in an attempt to establish a MAPIL claim.
This Court further finds that genuine issues of material fact exist,
which preclude the entry of summary judgment on the plaintiff‟s
MAPIL claim at this time.
The issue was raised a second time before the trial court immediately
preceding trial, and at that time, the trial court stated that it thought “their
theory . . . is to attempt to show that none of those prescriptions, or many of them,
should not or may not have been written because the doctors weren‟t given full
information. That‟s their theory. I don‟t know whether it‟s right or not.” It went
on to explain part of its interpretation of MAPIL as:
[M]y lean at this time is under 438.3(A), I think the [“]no person shall
knowingly present or cause to be presented[”] is not a legal causation
requirement. I just don‟t accept that. The B part about [“]engage in
8
misrepresentation to obtain[”] – I kind of like the comma and
disjunctive “or”. . . . On the C portion, 438.3(C), no person shall
conspire to defraud, comma, “or”. If they wanted to do something
different, they could have put and slant or. But they didn‟t. Or they
could have put “and”. But you‟ve got a comma which depends on a
comma. Funny how that works. And then the disjunctive “or”, o-
r. . . . it prohibits conspiracy to defraud or any attempt – attempt to
defraud. Do I think the statute is broadly written? I do. And I only
get that because it kind of says that in 437.2. Under Legislative intent,
and it appears that from what I – the way I read the B portion at least,
is that they want the secretary, private citizens and the Attorney
General to all be able to attempt to protect in whatever fashion the
programmatic integrity, the fiscal and programmatic integrity, of the
medical assistance programs.
In further explaining why it believed the Attorney General could seek civil
penalties under MAPIL, the trial court stated:
[W]hat I attempted to say and perhaps unartfully in those reasons [for
ruling on Janssen‟s motion for summary judgment, which is excerpted
above], was . . . that if it is shown that the statements were misleading,
fraudulent, whatever the definition stuff is that they‟re alleging, that in
and of itself provides their causation.
....
I find that if they prove false, misleading, misrepresentative, deceitful,
intent to defraud type statements, attempts to defraud type statements,
that in and of itself is the causation they need to get to their penalty
statute.
After carefully reviewing the record, we find that the trial court did not
abuse its discretion in interpreting the MAPIL statute to mean that if the Attorney
General was able to prove “false, misleading, misrepresentative, deceitful, intent to
defraud type statements, attempts to defraud type statements” Janssen would be
liable for civil penalties under MAPIL. The trial court paid attention to the
language and punctuation of the statute and read the pertinent subsections in pari
materi with the remainder of the MAPIL legislation, as required by the Pumphrey
court. Its interpretation of the statute is a reasonable one. Accordingly, this
assignment lacks merit.
9
Evidence
Whether the trial court made evidentiary rulings that unfairly prejudiced the
corporation is the subject of Janssen‟s fifth through ninth assignments of error.
Specifically, the corporation alleges that the trial court erred by: excluding
evidence that supported the accuracy of the scientific opinions they stated;
excluding evidence that proved the Attorney General and Department of Health
and Hospitals‟ conduct was inconsistent with the Attorney General‟s litigation
position; excluding testimony from Janssen‟s statistician expert showing that
Janssen did not misrepresent Risperdal‟s safety and that Louisiana doctors were
not misled by the “dear doctor” letters; admitting the informal and advisory
DDMAC warning letter into evidence; and finally, that these alleged evidentiary
errors denied Janssen due process.
In general, an error on appeal “may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected.”
La.Code Evid. art. 103(A). In addition, “[w]hen the ruling is one excluding
evidence, the substance of the evidence [must have been] made known to the court
by counsel.” La.Code Evid. art. 103(A)(2). On the other hand, “[w]hen the ruling
is one admitting evidence,” counsel must have made for the record “a timely
objection or motion to admonish the jury to limit or disregard” the evidence,
“stating the specific ground of objection.” La.Code Evid. art. 103(A)(1). “The
trial court is granted broad discretion in its evidentiary rulings, which will not be
disturbed on appeal absent a clear abuse of that discretion.” Hays v. Christus
Schumpert N. La., 46,408, p. 7 (La.App. 2 Cir. 9/21/11), 72 So.3d 955, 961.
Appellate courts must employ a two-part test to determine whether the trial
court‟s evidentiary ruling was erroneous: first, we must determine “whether the
complained of ruling was erroneous and [then,] whether the error affected a
10
substantial right of the party.” Id. “The concept of „substantial right‟ as used in
Article 103 is „a kin to the familiar „harmless error‟ doctrine applicable in both
civil and criminal matters.‟” Arceneaux v. Amstar Corp., 06-1592, p. 37 (La.App.
4 Cir. 10/31/07), 969 So.2d 755, 779, writs denied, 07-2486 (La. 3/24/08), 977
So.2d 952, and 08-53 (La. 3/24/08), 977 So.2d 953 (citation omitted). It is the
complaining party‟s burden to present evidence of how an alleged error had a
substantial bearing or effect on the outcome of the case. See McKenzie v. Thomas,
95-2226 (La.App. 1 Cir. 6/28/96), 678 So.2d 42, writ denied, 96-1855 (La.
10/25/96), 681 So.2d 372.
Excluding Evidence
Janssen complains that the trial court erroneously excluded evidence that
supported the accuracy of the scientific opinions they stated and that proved the
Attorney General and Department of Health and Hospitals‟ conduct was
inconsistent with the Attorney General‟s litigation position. It further asserts that
the trial court erroneously excluded testimony from its expert statistician, which
would have shown that Janssen did not misrepresent Risperdal‟s safety and that
Louisiana doctors were not misled by the “dear doctor” letters.
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, or waste of time.”
La.Code Evid. art. 403.
In excluding evidence that allegedly supported the accuracy of the scientific
opinions stated by Janssen, and evidence that allegedly proved the Attorney
General and Department of Health and Hospitals‟ conduct was inconsistent with
the Attorney General‟s litigation position, the trial court stated:
11
[T]his case is about, as far as I know, nobody has told me different,
events which occurred from November of 2003 to July of 2004.
Anything that you do from this point forward that I believe is
deliberate to get outside of those confines, I‟m going to tell you, I am
going to call you on it.
....
. . . What I stated at the time was that that was going to be the
relevant time period and everything I considered was going to be with
regard to that relevant time period. I went on to say if something
occurred either before or after and it was directly relevant to what
occurred in those years, then that‟s what I would consider relevant.
That was my ruling; it still is. I have not had the opportunity to
determine whether the testimony of the DHHR officials would result
in a statement against interest. Mr. Irwin tells me, and I accept in
good faith, that the depositions as I read them will indicate only to this
extent that they had knowledge. They were sent, or a copy was
forwarded, to the State Director of the Department of Health and
Hospitals as to the warning letter or the correction letter. To that
extent, those officials can be asked and I will allow that. Did you get
a letter, the warning letter, did you get a copy of the correction letter
and what action, if any, did you take in that regard. That is what I am
going to allow in that regard. As to the particular motion, the
testimony with regard to whether the Attorney General‟s Office
informed anyone or not, I‟ll take those questions as they come and
make a decision accordingly. Testimony that DHH has repeatedly
placed Risperdal on the preferred drug list, I‟m going to tell you right
now, I‟m not going to allow that. The letter from FDA officials
closing the informal regulatory matter, plaintiff has brought out
without requiring any civil penalties or taking any formal enforcement
action, I‟m going to allow that because it‟s, to me, relevant in place
and time with the events that occurred in 2003 and 4 which is the
subject of this litigation. I will allow that. The subsequent scientific
developments I‟m not going to allow. I‟m not going to allow it
because I believe that the pertinent time period we‟re dealing with is
from November 10, 2003, July 21, 2004 and the scientific evidence
considered by the FDA and Janssen in their communications and their
actions, both sides, both parties are, FDA and Janssen. As to the 2009
Zyprexa label change, I‟m going to disallow it because it‟s an indirect
method of showing a subsequent action and I‟m not going to allow it.
With that, that‟s going to be my ruling. As to each question asked, I
will consider it in that context to any witness at any time. Now that‟s
my ruling.
After carefully reviewing the record, we find no abuse of discretion by the
trial court. Accordingly, these assignments lack merit.
12
Janssen contends that the trial court erred in excluding the testimony of its
expert statistician. Louisiana Code of Evidence Article 702 governs expert
testimony, which must be relevant and the probative value must outweigh the
prejudice. Clay v. Int’l Harvester, 95-1572 (La.App. 3 Cir. 5/8/96), 674 So.2d
398.
In Frederick v. Woman’s Hosp. of Acadiana, 626 So.2d 467
(La.App. 3 Cir.1993), writ denied, 93-2991 (La.2/4/94), 633 So.2d
169, this court approved of the Fourth Circuit Court of Appeal‟s
approach to the evaluation of the admissibility of expert testimony,
pronounced in Adams v. Chevron, U.S.A., Inc., 589 So.2d 1219
(La.App. 4 Cir.1991), writs denied, 592 So.2d 414, 415 (La.1992). In
Adams, the fourth circuit adopted the Christophersen v. Allied-Signal
Corp., 939 F.2d 1106 (5th Cir.1991) interpretation of Federal Rule of
Evidence article 403 for the evaluation of the admissibility of expert
testimony under Louisiana law. That four-inquiry approach is as
follows:
(1) whether the witness is qualified to express an expert
opinion, (2) whether the facts upon which the expert
relies are the same type as are relied upon by other
experts in the field, (3) whether in reaching his
conclusion the expert used well-founded methodology,
and (4) assuming the expert‟s testimony passes these
tests, whether the testimony‟s potential for unfair
prejudice substantially outweighs its probative value
under the relevant rules.
Adams, 589 So.2d at 1223. In Frederick, 626 So.2d 467, this court
broadened the fourth inquiry to include consideration of the
cumulative nature of the expert testimony, since Article 403 provides
a balance of probative value not only against unfair prejudice but also
against undue delay or waste of time considerations.
The Frederick court reasoned that, in cases where the first three
Adams inquiries are positively answered, the following criteria applies
to the determination of the fourth inquiry:
Admitting cumulative expert testimony not excludable
on other grounds requires its fulfilling three conditions.
The first condition questions the relevance of the
testimony to be elicited. The second seeks to ascertain
that the fact finder will be aided by the testimony. The
third, balancing the probative value of this testimony
against substantial prejudice, confusion, or inefficiency,
guards against undue removal of reason from the fact
finding process, as well as waste.
13
Clay, 674 So.2d at 403. A failure to meet any of these three criteria means the
fourth prong has failed and it is fatal to the admission of “an expert‟s unbridled
testimony.” Id. Evidence should also be excluded “if its probative value is
outweighed by the risk that its admission will consume too much time [or]
unnecessarily confuse the jury concerning the issues to be determined.” State v.
Jackson, 584 So.2d 266, 269 (La.App. 1 Cir. 1991), writ denied, 585 So.2d 577.
In its reasons for excluding testimony from Janssen‟s statistician expert, the
trial court stated:
The question is what opinion is he going to give to me with
regard to the facts that are relevant to this case.
....
I understand it‟s what statisticians do. That‟s not the issue
before me. I understand the validity of statisticals. Regardless, they
are accurate. I was amazed at how an algorithm can be created to
perform a statistical operation which will pretty much tell you the
answer to almost any human question that comes up. That‟s not the
question. The question is does it meet the exception as to hearsay
created by Article 703 of the Code of Evidence is, but evidently there
is such a field. In this particular instance, this Court finds that what
we‟ve got is a gentleman who is unparalleled in the field of statistics.
There‟s no doubt in my mind. But he is not going to render any
opinion that has any relevance to this case with reference to his
expertise. He is going to give us by what I‟m understanding, his
understanding, his expert understanding, on what one hundred and
fifty physicians‟ opinions were. So all he is, is he‟s taking their
opinions and saying this is what they said and I take issue with you
saying, well, there‟s no other way it could have been presented. I
recall going up earlier where we were discussing whether Louisiana‟s
privacy laws were beyond HIPAA. And I said, well, you know what,
I‟m going to let it go because they can‟t have six thousand
contradictory hearings and my Court of Appeal sent me back with a
slap on the hand and said, you can‟t do that. Six thousand? You may
have to have one. Right now our law doesn‟t allow anything else.
Based on all of that, and primarily based upon the fact that I find the
gentleman is not going to be giving us an opinion of the type
reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data with regard
to this case. Not his opinion. He is merely acting as a conduit to tell
me what others‟ opinions are. As a result, I‟m going to deny his
testimony and I‟ll give you the opportunity then to refocus your case.
14
After carefully reviewing the record, we find no manifest error in the trial
court‟s ruling. The trial court considered the factors presented in Frederick, 626
So.2d 467, and determined that the testimony the expert would provide was not
relevant to the case before the jury. Accordingly this assignment lacks merit.
Admitting Evidence
Janssen complains that the trial court erroneously admitted into evidence the
informal and advisory DDMAC Warning Letter as well as Janssen‟s response letter
dated July 21, 2004. The DDMAC Warning Letter sent to Janssen alleges that
communications made to healthcare providers on November 10, 2003, violated two
sections of the Federal Food, Drug, and Cosmetic Act. After receipt of the
DDMAC letter, Janssen responded by agreeing to send a follow-up letter to
healthcare providers, dated July 21, 2004, addressing DDMAC‟s allegations and
providing information for which the DDMAC section of the FDA had complained.
The trial court admitted the DDMAC letter under the public records exception to
the hearsay rule set forth in La.Code Evid. art. 803(8). In addition, the trial court
noted that the letter represented only one among many pieces of evidence
submitted by the Attorney General in support of his claim.
La. C.E. art. 803(8) provides that records, reports, statements,
or data compilations, in any form, of a public office or agency setting
forth its regularly conducted and regularly recorded activities are
exceptions to the hearsay rule. The public document exception to the
hearsay rule is based on the principles of necessity and the probability
of trustworthiness.
State v. Caston, 43,565, p. 18 (La.App. 2 Cir. 9/24/08), 996 So.2d 480, 490.
“Evidentiary admissibility rulings are well within the discretion of the trial
court.” Wingfield v. State ex rel. Dep’t of Transp. and Dev., 01-2668, p. 21
(La.App. 1 Cir. 11/8/02), 835 So.2d 785, 803, writs denied, 03-313, 03-339, 03-
349 (La. 5/30/03), 845 So.2d 1059, 1060, cert. denied, 540 U.S. 950, 124 S.Ct. 419
15
(2003). Additionally, “[t]he relevancy of evidence and the effect of prejudice from
the offered evidence are governed by the Louisiana Code Evidence articles 401-
403.” Id. at 803-04.
After carefully reviewing the record in light of the law and jurisprudence, we
find that the trial court did not abuse its discretion in admitting the DDMAC letter
under the public records exception to the hearsay rule. Accordingly, this
assignment lacks merit.
Evidentiary Due Process Violations
Janssen asserts that the trial court‟s alleged erroneous evidentiary rulings
deprived the corporation of due process.
The Fourteenth Amendment to the United States Constitution
provides, in pertinent part, “nor shall any state deprive any person of
life, liberty or property, without due process of law.” In addition, LA
CONST. ANN. art 1 § 2 provides “[n]o person shall be deprived of
life, liberty, or property, except by due process of law.”
....
Due process is an elusive concept. Its exact boundaries are
undefinable, and its content varies according to specific factual
contexts. As a generalization, it can be said due process embodies the
differing rules of fair play which through the years have become
associated with differing types of proceedings.
Driscoll v. Stucker, 04-589, pp. 9-13 (La. 1/19/05), 893 So.2d 32, 41-43 (citations
omitted).
The “due process of law” provision in the Constitution is
designed to exclude oppression and arbitrary power from every
branch of the government. “„Due process of law,‟ in judicial
proceedings, means a course of legal proceedings according to those
rules and principles which have been established in our system of
jurisprudence for the conduct and enforcement of private rights.” It
means that no person shall be deprived of life, liberty, property, or of
any right granted him by statute, unless the matter involved shall first
have been adjudicated against him upon trial conducted according to
established rules regulating judicial proceedings. It forbids
condemnation without a hearing.
16
It has been said by many courts that “due process of law” and
the “law of the land” mean the same thing. Daniel Webster . . . gave a
definition of “law of the land” and “due process of law” which has
received the sanction of the courts. He said: “By the „law of the land‟
is clearly intended the general law, which hears before it condemns,
which proceeds upon inquiry, and renders judgment only after trial.”
Dupuy v. Tedora, 15 So.2d 886, 890-91 (La.1943) (citations omitted).
Due process affords a defendant the right of full confrontation and
cross-examination of the witnesses testifying against him. The trial
court has discretion to control the extent of the examination of
witnesses as long as it does not deprive the defendant of his right to
effective cross-examination. Evidentiary rules may not supersede the
fundamental right to present a defense.
Reuther v. Smith, 05-794, p. 7 (La.App. 4 Cir. 2/15/06), 926 So.2d 9, 13 (citations
omitted). However, “„[d]ue process of law‟ only means due notices and
opportunity to be heard.” Bass v. Yazoo, 67 So. 355, 355 (La.1915).
In the instant case, the record clearly indicates that Janssen was afforded
notice and an opportunity to be heard. Before each of the evidentiary rulings
Janssen presents as error the trial court heard argument from both parties. The trial
court is afforded vast discretion in making evidentiary rulings. We have found no
abuse of that discretion and, after carefully reviewing the record, are certain that
Janssen was given notice and afforded the opportunity to be heard. Accordingly,
this assignment lacks merit.
Closing Arguments
Whether the trial court erred in allowing the Attorney General to make
prejudicial or improper closing arguments that appealed to prejudices against out
of state corporations in violation of Louisiana law and the Constitutions of the
United States and the State of Louisiana is the subject of Janssen‟s tenth
assignment of error.
“[C]ounsel have great latitude in argument before a jury, subject however to
regulation and control by the court whose duty it is to confine argument within
17
proper bounds.” Luquette v. Bouillion, 184 So.2d 766, 771 (La.App. 3 Cir. 1966).
“The parties to an action are entitled to a fair trial on the merits of the case,
uninfluenced by appeals to passion or prejudice, and counsel should confine his
argument to the evidence of the case and to the inferences properly to be drawn
therefrom. . . .” Temple v. Liberty Mut. Ins. Co., 316 So.2d 783, 793 (La.App. 1
Cir. 1975), reversed on other grounds, 330 So.2d 891 (La.1976) (citation omitted).
“[T]he propriety or not of a particular argument made at a particular time must be
determined in the light of the facts of the particular case, the conduct and
atmosphere of that particular trial, and the arguments of opposing counsel.”
Luquette, 184 So.2d at 771. “[A]ppeals to sympathy, as long as they are based on
the facts in the case, are not ordinarily considered improper and furnish no ground
for complaint.” Caballero v. Catholic Mut. Ins. Co., 97-1458, p. 3 (La.App. 1
Cir.), 718 So.2d 511, 514, writ denied, 98-2498 (La. 11/25/98), 729 So.2d 567. If
all of the evidence referenced by counsel in their argument has been properly
admitted into the record, references thereto cannot be prejudicial. LeRay v. St.
Paul Fire & Marine Ins. Co., 444 So.2d 1252 (La.App. 1 Cir. 1983), writ granted,
448 So.2d 108 (La.) and writ dismissed, 452 So.2d 1174 (La.1984). “Some flights
of eloquence, and the introduction of some touches of pathos in the discussion of
the case, are considered to be within the general constraints of permissible
argument.” Caballero, 718 So.2d at 514. “[F]air advocacy not designed to
inflame the jury is permissible.” Ogletree v. Willis-Knighton Mem. Hosp., Inc.,
530 So.2d 1175, 1181 (La.App. 2 Cir.), writ denied, 532 So.2d 133 (La.1988).
However, “[i]nflamatory remarks made by counsel in argument which are
calculated to appeal to the passions and prejudices of a jury are improper.”
Temple, 316 So.2d at 793 (citation omitted). Presenting “considerations
extraneous to the [admitted] evidence” or appealing to jury “sympathy based on
18
matters not in evidence and which cannot in any legitimate way be brought to the
attention of the jury” constitute highly improper arguments. Id. (Citations
omitted.) “The test of whether argument of counsel is prejudicial or inflammatory
is whether such comment is unreasonable or unfair in the eyes of the law.” Id.
(Citation omitted.)
The propriety of the Attorney General‟s closing argument was brought to the
trial court‟s attention immediately following the argument. At that time, the trial
court found:
[T]hat the general tenor of the argument was to the effect that the
parties to be considered here and to be punished, if anyone, were
Janssen and Johnson and Johnson, who were part of corporate
America. But he hastened to add on both occasions, because I was
listening for it, that corporate America in the form of, in this
courtroom, Janssen and Janssen – Janssen and Johnson and Johnson.
As a result, I overrule your objection. I decline to give the jury
instruction that you seek and I note your objection to my ruling for the
record.
....
. . . I‟m going to note for the record that I believe the Motion
for Mistrial at this point borders on the audacious. And I deny it in
that spirit. Every lawyer I‟ve ever heard do a closing argument can
tell the jury what he thinks the facts show when compared to the law
and I find that that‟s completely consistent with what a closing
argument should be.
“[R]ulings of a trial court relative to alleged improper argument are
presumed to have been within the court‟s discretion in such matters.” Temple, 316
So.2d at 793 (citing Luquette, 184 So.2d 766). The standard of review is abuse of
discretion, because “[t]he trial court is in a better position than an appellate court to
determine possible prejudicial effects resulting from counsel‟s argument before a
jury.” Caballero, 718 So.2d at 514.
“[B]efore a reviewing court can hold that an improper argument constitutes
reversible error, the court „must be thoroughly convinced the remark influenced the
19
jury and contributed to its verdict.‟” Simon v. State Farm Mut. Auto. Ins. Co., 09-
1083, p. 8 (La.App. 3 Cir. 6/9/10), 43 So.3d 990, 998, writ denied, 10-1613 (La.
10/29/10), 48 So.3d 1094 (citation omitted). The record reflects that when
instructing the jury, the trial court stated:
The evidence which you are to consider consists of the stipulated facts,
the testimony of the witnesses, the documents that have been admitted
into evidence, and any fair inferences and reasonable conclusions
which you can draw from the evidence submitted to you. Neither the
written pleadings nor arguments by the lawyers, nor any comment or
ruling which I have made is evidence.
Even if we were to that find the Attorney General made improper statements
during closing argument, the trial court remedied this by instructing the jury to
disregard all written pleadings, arguments by attorneys, and comments or rulings
from the bench when deliberating. See Karagiannopoulos v. State Farm Fire &
Cas. Co., 94-1048 (La.App. 5 Cir. 11/10/99), 752 So.2d 202, writ denied, 99-2866
(La. 12/10/99), 752 So.2d 165 (finding that the trial court‟s instruction to the jury
on the non-evidentiary nature of arguments by attorneys remedied any potentially
improper remarks made by an attorney during closing argument). We find the trial
court‟s instruction to the jury that arguments by counsel have no evidentiary value
to be sufficient to preclude any potentially improper statements from influencing
the jury or contributing to its verdict. We further find that the trial court did not
abuse its discretion in overruling Janssen‟s objection to the Attorney General‟s
closing arguments or in denying Janssen‟s motion for mistrial based on the
Attorney General‟s closing arguments. Accordingly, this assignment lacks merit.
Jury Instructions/Form
Janssen asserts that the trial court erred: by allowing the Attorney General
to argue to the jury that proof of actual damages to Louisiana Medicaid had been
shown; by failing to instruct the jury on the law applicable to the Attorney
20
General‟s claim; by instructing the jury on MAPIL‟s legislative intent and purpose,
the Medical Assistance Programs Fraud Detection Fund, conspiracy, and FDA
regulations; by failing to instruct the jury on the First Amendment and the
inapplicability of FDA regulations to MAPIL; and by adopting a verdict form that
allowed the jury to enter a verdict unsupported by law.
We review jury instructions and jury verdict forms for manifest error.
Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586 (La. 4/1/11), 61 So.3d 507
and Townes v. Liberty Mut. Ins. Co., 09-2110 (La.App. 1 Cir. 5/7/10), 41 So.3d
520. Louisiana Code of Civil Procedure Article 1792 governs jury instructions and
provides that the trial court “shall instruct the jurors on the law applicable to the
cause submitted to them.” Jury interrogatories must “fairly and reasonably point
out the issues to guide the jury in reaching an appropriate verdict.” Townes, 41
So.3d at 527. Louisiana jurisprudence is clear that a trial court is under no
obligation to give any particular jury instruction and has the right to determine
what law is applicable and appropriate. Wooley, 61 So.3d 507. The trial court may
include any instruction that will reduce confusion among jurors. Id. In reviewing
jury instructions, the “ultimate inquiry on appeal is whether the jury instructions
misled the jury to such an extent that the jurors were prevented from dispensing
justice.” Wooley, 61 So.3d at 574. Similarly, we may not set aside a jury verdict
form “unless the form is „so inadequate that the jury is precluded from reaching a
verdict based upon correct law and facts.‟” Ford v. Beam Radiator, Inc., 96-2787,
p. 3 (La.App. 1 Cir. 2/20/98), 708 So.2d 1158, 1160 (citation omitted).
After carefully reviewing the record we find no manifest error with the trial
court‟s jury instructions nor with the jury verdict form. Therefore, this assignment
lacks merit.
21
Attorney Fees and Costs
Whether the trial court erred by awarding $70,000,000 in attorney fees and
$3,000,200 in costs to the Attorney General is the subject of Janssen‟s seventeenth
assignment of error. Specifically, Janssen argues that these monetary penalties are
unconstitutional; that “the trial court failed to account for the fact that most of the
work done for more than five of the six years between the filing of this action and
trial related to Medicaid reimbursement and off-label marketing claims, on which
Appellants were granted partial summary judgment and which were then
abandoned by the Attorney General before trial;” that the time records submitted
do not reflect work actually performed by counsel; and that the trial court erred in
determining that the Attorney General‟s private counsel “undertook a risk that its
fees, which were contingent on success, would never be paid.”
Attorney Fees
“Whether an attorney fee is clearly excessive is a finding of fact to be made
by the trial judge which will not be disturbed on appeal absent manifest error.”
Teche Bank and Trust Co. v. Willis, 93-732, p. [] (La.App. 3 Cir. 2/2/94), 631
So.2d 644, 647. “In determining and fixing the attorney‟s fees, the court must
adhere to the Rules of Professional Conduct which prohibit an attorney from
collecting a fee that is in excess of a reasonable fee. . . .” Graves v. Lou Ana Foods
Inc., 604 So.2d 150, 168 (La.App. 3 Cir. 1992). “[T]he determination of fairness
and reasonableness of an attorney fee is ultimately a question for the courts.”
Ruttley v. Steiner, 95-73, p. 16 (La.App. 5 Cir. 5/30/95), 656 So.2d 1095, 1102.
“The fundamental measure of attorney‟s fees is reasonableness. . . .” Mayeur v.
Campbell, 94-2263, p. 7 (La.App. 1 Cir. 12/12/95), 666 So.2d 366, 370. “A fee is
„clearly excessive,‟ if it is „so grossly out of proportion with fees charged for
similar services by other attorneys in the locale as to constitute an unquestionable
22
abuse of an attorney‟s professional responsibility to the public.‟” Teche, 631 So.2d
at 646-47 (citation omitted.)
Attorney fees under MAPIL are authorized under La.R.S. 46:438.6(D)(1)
and (2), which provides:
(1) Any person who is found to have violated this Subpart shall be
liable for all costs, expenses, and fees related to investigations and
proceedings associated with the violation, including attorney fees.
(2) All awards of costs, expenses, fees, and attorney fees are subject
to review by the court using a reasonable, necessary, and proper
standard of review.
“Attorney‟s fee statutes must be construed strictly because the award of
attorney fees is exceptional and penal in nature.” Cracco v. Barras, 520 So.2d
371, 372 (La.1988). In determining the reasonableness of an attorney fee, the trial
court may take into consideration the ultimate result obtained; the responsibility
incurred; the importance of the litigation; the amount of money involved; the
extent and character of the work performed; the legal knowledge, attainment, and
skill of the attorneys involved; the number of appearances made; the intricacies of
the facts involved; the diligence and skill of counsel; and the court‟s own
knowledge. State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439
(La.1992).
The trial court‟s oral reasons for ruling on attorney fees and costs filled
forty-one pages of the transcript. A careful review of the record indicates that the
trial court considered each and every factor enumerated in Williamson in great
detail, in addition to considering expert testimony from both parties on proposed
fee determinations. In arriving at the attorney fee and costs award, the trial court
considered the level of competence of the lawyers; the complexity of the litigation,
which included “twenty-nine status conferences, thirty-one major motions,” and
“two hundred and twenty four depositions taken”; Justice Powell‟s holding in
23
Hensley; the result the plaintiffs obtained; the interrelatedness of the causes of
action originally presented; the court experts involved in the litigation; the
Williamson and Corbello cases; the novelty of the case; the difficulty of the
questions involved; the time spent on the litigation; the non-contemporaneous time
sheets; the factors of [Model Rules of Professional Conduct Rule] 1.5 (A); the
responsibility incurred; the importance of the litigation; and the amount of money
involved. Specifically, the trial court stated:
I‟m telling you about the complexity of the litigation for a reason. We
looked rather intricately at everything. . . . All of that is unique,
forced me to look at the causes of action whether they were related,
what the underlying basis of it all was . . . . I‟m going to deal with the
easiest portion of that factor, “novelty”. If I have not made it clear yet,
this case was novel. This case was unique in the way it was presented,
in the way it was moved along. Finally, into the courtroom, into the
requirements made of counsel, into the requirements of the Court to
try and maintain an understanding of what was occurring. I‟m going
to tell you, novel, if this case qualifies as nothing else, it is novel. . . .
[W]e as a group, the lawyers had to learn, understand and then teach
me about the Federal Drug Act, the regulations that go with that,
whether they apply, can they be used as a ceiling or a floor, was there
preemption. . . . I can‟t imagine something more difficult. . . . These
folks are professional, courteous, zealous, and vigorous. They‟re
ethical. No matter what happened, no matter how angry I know they
had to have been at times with my rulings, my pontifications,
whatever it was, I never saw it from either side. That‟s to me the
hallmark of good lawyering. The task to me was Herculean. . . . [A]ll
timekeepers were made available; there was a stipulation reached that
it wouldn‟t be necessary. . . . Okay, so it‟s obvious that I thought
about this and after doing all of this merging of factors, consideration
of factors, I‟m just going to come out with a number. And it‟s hard to
just do that without repeating over and over what I considered because
it‟s scary and it‟s hard. But I‟m going to tell you, after looking at all
of this, looking at this litigation for six years, wishing desperately to
shake the dust of this case from my feet, looking at the quality of this
litigation, I feel a reasonable, necessary and proper attorneys fee of
seventy million dollars.
After carefully reviewing the arguments presented in brief, the record and its
exhibits, and the trial court‟s thorough oral reasons for ruling, we find that it did
not abuse its discretion in awarding $70,000,000 in attorney fees. Accordingly,
this assignment lacks merit.
24
Costs
We review the trial court‟s assessment of court costs for abuse of discretion.
Bentley v. Fanguy, 09-822 (La.App. 3 Cir. 10/6/10), 48 So.3d 381, writ denied, 10-
2854 (La. 2/25/11), 58 So.3d 457. “The trial court, in taxing court costs, is given
great discretion and may assess those costs in any manner it deems equitable.
La.Code Civ.P. art. 1920.” Id. at 389. We find no abuse of discretion with the trial
court‟s assessment of costs to Janssen. The Attorney General successfully
obtained judgment against the corporation, and the trial court had vast discretion in
assessing costs. See Bentley, 48 So.3d 381; Trahan v. Asphalt Assocs., Inc., 01-
311 (La.App. 3 Cir. 10/17/01), 800 So.2d 18; and Este v. State Farm Ins. Cos., 96-
99 (La.App. 3 Cir. 7/10/96), 676 So.2d 850. Accordingly, this assignment lacks
merit.
Interest
In his answer to Janssen‟s appeal, the Attorney General raised a single issue:
whether the trial court erred by refusing to award interest from the date of judicial
demand on both the judgment rendered by the jury and the award of attorney fees
made by the trial court. The grant of judicial interest is governed by La.Code
Civ.P. art. 1921, which states that “[t]he court shall award interest in the judgment
as prayed for or as provided by law.” Louisiana courts have interpreted this statute
as creating a mandate that trial courts award interest if it is prayed for or provided
by law. See Bickham v. Bickham, 02-1307 (La.App. 1 Cir. 5/9/03), 849 So.2d 707.
“[T]he date on which judicial interest begins to accrue [is] subject to the manifest
error standard of error.” Hall Ponderosa, LLC v. Petrohawk Properties, L.P., 11-
1056, p. 4 (La.App. 3 Cir. 4/4/12), 90 So.3d 512, 517. See also, Ashy v. Trotter,
04-612 (La.App 3 Cir. 11/10/04), 888 So.2d 344, writ denied, 05-180 (La. 3/24/05),
896 So.2d 1045.
25
Janssen did not challenge the portions of the judgment awarding the
Attorney General interest. Moreover, an examination of the Attorney General‟s
Fifth Supplemental and Amending Petition shows that he did pray for interest.
Accordingly, the question before us today is whether the trial court erred in its
determination of when the awards of interest should begin accruing.
In his answer to appeal, the Attorney General argues that the trial court erred
in its fixing of the start dates for the accrual of interest, as interest should have
been computed from the date of judicial demand. In support of his argument, the
Attorney General cited the definition of “Recovery” in the MAPIL statute, which
provides that such term means “the recovery of overpayments, damages, fines,
penalties, costs, expenses, restitution, attorneys‟ fees, or interest or settlement
amounts.” La.R.S. 46:437.3(24). He then asserts that “[i]t is clear, as evidenced
by the inclusion of the term „interest‟ in the definition of „Recovery‟ as referenced
hereinabove, that the legislature intended that all sums awarded under R.S.
46:438.6, entitled „Recovery,‟ would include interest on all sums awarded.”
(Emphasis omitted). He further supports his argument that interest should begin
running from the date of judicial demand, rather than judgment, by differentiating
the instant case from Sher v. Lafayette Insurance Co., 07-2441 (La. 4/8/08), 988
So.2d 186 (the supreme court determined that interest on penalties accrues from
the date of judgment), because in La.R.S. 22:658, the statute at issue in Sher,
penalties and attorney fees were not automatic, but in the MAPIL statute, attorney
fees “shall” be assessed against any person found to violate La.R.S. 46:438.
Because the award of attorney fees for MAPIL violations was automatic and
mandatory once the jury found that Janssen engaged in fraud and misrepresentation,
the Attorney General submits that interest on the attorney fee award should begin
accruing from the date of judicial demand. Contending that Sher is distinguishable
26
from this matter, the Attorney General argues that interest on the jury‟s award of
penalties should also be calculated from the date of judicial demand.
Janssen argues that we “should reject the Attorney General‟s frivolous
contention that because MAPIL‟s statutory definition of “Recovery” refers to
interest and indicates that a person found to have violated the statute “shall” be
liable for attorney fees, the Legislature silently prescribed imposition of interest
from the date of judicial demand.
The jury found that Janssen committed 35,542 violations of MAPIL and that
a civil penalty of $7,250 should be imposed against it for each of those violations.
The trial court directed that interest on the jury‟s award should accrue from
October 14, 2010, the date the jury rendered its verdict. As mentioned previously,
the trial court determined that a reasonable attorney fee to compensate the Attorney
General for his efforts in pursuing this matter was $70,000,000. The trial court
directed that interest on that portion of the judgment should accrue from
February 11, 2011, the date it rendered its oral reasons for judgment.
Given the highly complicated nature of this matter and the fact that no other
Louisiana court has ever before assessed penalties against a pharmaceutical
company under Louisiana‟s MAPIL statute, we conclude that the trial court did not
commit manifest error in its determination of when interest should begin accruing
on the penalties awarded by the jury and on the attorney fees that it awarded.
Accordingly, the Attorney General‟s answer to appeal is denied.
JNOV
In its eighteenth assignment of error, Janssen asserts that the trial court erred
in denying its JNOV and alternatively its Motion for New Trial. A motion for
JNOV is governed by La.Code Civ.P. art. 1811 and is only warranted “when the
facts and inferences point so strongly and overwhelmingly in favor of one party
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that the trial court believes that reasonable persons could not arrive at a contrary
verdict.” Elfers v. AIG Nat’l Ins. Co., 11-596, p. 3 (La.App. 4 Cir. 11/16/11), 80
So.3d 585, 587 (quoting Joseph v. Broussard Rice Mill, Inc., 00-628 (La.
10/30/00), 772 So.2d 94). Motions for JNOV require stringent review because
they deprive the parties of their right to have all of their disputes resolved by a jury
of their peers. Templet v. State, 00-2162 (La.App. 1 Cir. 11/9/01), 818 So.2d 54.
The trial court‟s decision to grant or deny a motion for JNOV requires it to
balance its obligation to insure that justice was accomplished against the deference
afforded to a jury‟s verdict. Matthews v. Arkla Lubricants, Inc., 32,121 (La.App. 2
Cir. 8/18/99), 740 So.2d 787. Appellate courts review a trial court‟s grant or
denial of a JNOV for error “by using the [] criteria just as the trial judge does in
deciding whether to grant the motion or not, i.e. do the facts and inferences
[presented at trial] point so strongly and overwhelmingly in favor of the moving
party that reasonable persons could not arrive at a contrary verdict?” Joseph, 772
So.2d at 99. “If there is evidence opposed to the motion which is of such quality
and weight that reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions, the motion should be denied.”
Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). A
motion for new trial can be joined with the motion for JNOV or can be prayed for
in the alternative. La.Code Civ.P. art. 1811.
The grant of new trial is governed by La.Code Civ.P. arts. 1971-73. “A new
trial to be granted . . . to all or any of the parties and on all or part of the issues, or
for reargument only.” La.Code Civ.P. art. 1971. The code mandates that a trial
court grant a new trial when the judgment is clearly contrary to the law and the
evidence, when a party discovers new evidence that could not have been
discovered before or during trial, and when impartial justice was not done because
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the jury was bribed or behaved improperly. La.Code Civ.P. art. 1972. Finally, “[a]
new trial may be granted in any case if there is good ground therefor, except as
otherwise provided by law.” La.Code Civ.P. art. 1973. Unless an abuse of
discretion can be demonstrated, an appellate court cannot reverse a trial court‟s
decision to grant or deny a motion for new trial. Harbor v. Christus St. Frances
Cabrini Hosp., 06-593 (La.App. 3 Cir. 11/2/06), 943 So.2d 545.
In accordance with Joseph and Anderson, we have carefully reviewed the
record in its entirety to determine whether the facts and evidence point so strongly
in favor of Janssen that reasonable people could not have arrived at a contrary
verdict. We find that the record is rife with evidence and facts that could be
interpreted in favor of either party; accordingly, JNOV was properly denied. We
also reviewed the record to determine whether the trial court abused its discretion
in denying Janssen‟s alternative motion for new trial. We find that Janssen did not
present evidence or argument supporting any of the three peremptory grounds
provided for in La.Code Civ.P. art. 1972. As the granting of a motion for new trial
based on La.Code Civ.P. art. 1973 is discretionary, we find that the trial court did
not abuse its discretion in denying Janssen‟s motion for new trial pursuant to
Articles 1972 or 1973. Accordingly, this assignment lacks merit.
The Claim Was Based On Alleged FDA Violations
Whether the trial court erred in allowing the Attorney General to pursue a
MAPIL claim based on alleged FDA regulatory violations is Janssen‟s second
assignment of error. Closer inspection of its brief supports the conclusion that
Janssen‟s argument is two-fold: first, the DDMAC letter should not have been
introduced into evidence and the Attorney General should not have been permitted
to center its case on this piece of inadmissible hearsay; and second, the Attorney
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General cannot seek to enforce FDA regulations through MAPIL. For the
following reasons, this assignment lacks merit.
We addressed the first prong of Janssen‟s argument in our discussion on
evidence and need not repeat our reasons for finding that the trial court was not
manifestly erroneous in admitting the DDMAC letter.
Janssen‟s argument that the Attorney General sought to enforce FDA
regulations through MAPIL is unfounded. The MAPIL statute allows the Attorney
General to bring a claim against any person who knowingly presents or causes to
present false or fraudulent claims or knowingly engages in misrepresentation to
obtain or attempt to obtain payment from medical assistance programs. The jury
was presented with overwhelming evidence, and, at the end of the trial, they were
charged with determining seven factual issues, each of which focused solely on the
MAPIL statute and the relief provided therein. As the jury was questioned solely
on the MAPIL statute and its applicability to the facts and evidence presented at
trial, Janssen‟s assertion that the Attorney General sought to enforce FDA
regulations through MAPIL is unfounded. Accordingly, this assignment lacks
merit.
Constitutional Arguments
In its third, fourth, and sixteenth assignments of error, Janssen raises the
following constitutional arguments: the petitioning activity performed by Janssen
was protected by the First Amendment; the judgment violates constitutionally
protected speech; and the penalty violates the Eighth and Fourteenth amendments
to the U.S. and Louisiana Constitutions.
The central focus of Janssen‟s argument is that the petitioning action it
undertook was protected, so evidence thereof should not have been admitted and
should not have been referenced by the Attorney General in his closing arguments.
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We have previously addressed admissibility of evidence and closing arguments.
As the trial court had broad discretion in admitting evidence and the Attorney
General was free to refer to any admitted evidence during his closing arguments,
we find that this assignment lacks merit.
Janssen then asserts that the record is insufficient to establish a MAPIL
claim and only supports the conclusion that the Attorney General and Janssen had
differing scientific opinions, which renders the judgment unconstitutional. We
have already addressed Janssen‟s claim that the evidence in the record was
insufficient to establish a MAPIL violation and found that the argument lacked
merit. Accordingly this assignment lacks merit.
Finally, Janssen urges that the civil monetary penalty is unconstitutionally
excessive. Louisiana Revised Statutes 46:438.6 provides for a civil monetary
penalty of “up to ten thousand dollars for each false or fraudulent claim [or]
misrepresentation.” The penalty assessed was $7,250 for each violation, which
was well within the statutory limits. “Statutes are presumed to be constitutional.”
State v. Granger, 07-2285, p. 8 (La. 5/21/08), 982 So.2d 779, 786. By extension, a
penalty that is within statutory limits is also presumed to be constitutional.
Accordingly, this assignment lacks merit.
DECREE
After carefully reviewing the record, we find that the trial court was not
manifestly erroneous in casting Janssen with civil monetary penalties, attorney fees,
and costs for its violations of Louisiana‟s MAPIL statute. We also find that the
trial court was not manifestly erroneous in its determination of when interest
should begin accruing on both the judgment of the jury and on the award of
attorney fees. Accordingly, the judgments appealed are affirmed in their entirety.
Costs are cast to the defendants.
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AFFIRMED.
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