COA again affirms on rehearing in ex-Anthem exec’s suit

Members of the Indiana Court of Appeals haven’t changed their minds in a case involving a former Anthem executive’s failed appeal of a jury verdict for the insurance company, granting a rehearing only to clarify its ruling to his raised contentions.

Former WellPoint Vice President Dr. Randall C. Axelrod alleged he was wrongly fired after testifying in a case concerning pharmaceutical pricing. Axelrod was removed as vice president of health care management for WellPoint’s Virginia-based east region in July 2006 and soon left the company.

He claimed WellPoint asked him to sign a form stating he was resigning, and when he refused, the company withheld severance and pension benefits, prompting him to sue.

Axelrod alleged he was fired shortly after testifying for Ortho Biotech in a New Jersey federal lawsuit the company brought against Amgen that Amgen ultimately settled for $200 million. A jury ruled against him and the Indiana Court of Appeals affirmed.

In its previous ruling, the COA held that the trial court did not misapply Indiana Trial Rule 60(B)(3), 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.

Although it granted Axelrod’s petition for rehearing solely for the purpose of clarification, the appellate court once again affirmed its original decision in Randy C Axelrod, M.D. v. Anthem, Inc., and all of its affiliates, WellPoint, Inc., and Amgen, Inc., 19A-PL-01171. 

“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,” wrote Senior Judge Randall Shepard.

First addressing Axelrod’s assertion that the jury verdict had been unfairly procured due to witness tampering by opposing counsel, the appellate court noted that it was apparent that the problems Axelrod’s counsel had experienced in securing testimony from out-of-state witnesses arose from the use of improper procedure.

“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,” Shepard wrote.

Putting the matter to rest, Court of Appeals concluded that a new trial was still not warranted upon finding that Axelrod’s attempts to subpoena Virginia witnesses were not illegal in any criminal sense, “just not in compliance with the applicable trial rules and the trial court’s guidance.”

Axelrod also alleged opposing counsel violated the trial court’s orders in limine. In particular, he cited Amgen’s attorneys for not asking to have stricken from the record the information about the company’s $200 million settlement and WellPoint’s counsel showing the jury his EEOC charge that included reference to his Jewish faith.

The appellate court remained unswayed, noting Axelrod did not object when the evidence was first offered at trial.

“We are convinced that the particular behavior does not constitute a violation of the court’s order as it is represented to us, and that Axelrod has not demonstrated that he is entitled to a new trial,” Shepard concluded.

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