Fired Anthem exec loses appeal of verdict for insurer

A jury verdict against a fired Anthem, Inc. executive will stand after the Indiana Court of Appeals declined to overturn the denial of the former insurance exec’s requests for a new trial.

Appellant-plaintiff Dr. Randy Axelrod began working for Anthem in 2003 as its vice president and general manager of healthcare management for the insurer’s Southeast Region, covering Virginia. Anthem became known as WellPoint after a merger, and Gloria McCarthy was named the chief operating officer of WellPoint’s East Region. McCarthy selected Axelrod as her vice president for healthcare management, and he began working with McCarthy in January 2006 to integrate the newly-created East Region.

Around the same time, Axelrod began working with a team at WellPoint to develop a special fee schedule for various drugs including Aranesp, a drug manufactured by Amgen, and Procrit, a drug manufactured by Ortho-Biotech, an Amgen competitor. The schedule encouraged physicians to prescribe Procrit over Aranesp, and WellPoint ultimately decided to bar coverage for Aranesp unless an insured patient was allergic to Procrit. Meanwhile, Axelrod was scheduled to testify in Ortho-Biotech’s case for an injunction in an antitrust lawsuit against Amgen concerning the competing drugs.

However, McCarthy began to complain about Axelrod’s job performance, and other members of the WellPoint team complained to McCarthy about him. Axelrod also complained about difficulties working with McCarthy. He was ultimately fired in July 2006.

Axelrod filed suit in October 2007 against Anthem and WellPoint, later adding Amgen as a defendant. He accused Anthem and WellPoint of breach of contract, good faith and fair dealing and civil conspiracy, while Amgen was facing claims of tortious interference and civil conspiracy for allegedly playing a role in his termination.

A “prolonged and complex discovery battle” began that included more than 1 million items. There were also disputes over witnesses and subpoenas.

The 20-day jury trial began in July 2017, but the Marion County jury returned a defense verdict after just 43 minutes. Axelrod unsuccessfully moved for a mistrial or a new trial, his motions to correct error and/or for relief from judgment were denied.

Axelrod then appealed, arguing the trial court misapplied Indiana Trial Rule 60(B)(3). Relying on Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006), he argued “the court misapplied Rule 60(B)(3) by erroneously requiring him to show (1) a different result would have occurred, (2) clearly opposite evidence, (3) misconduct involving undoubtedly duplicitous or clearly malicious intent, and (4) clear misconduct or fraud or other subterfuge.”

But “Axelrod could not make a showing to support allegation (1) because the same or similar kinds of evidence and inferences therefrom were rejected by the jury in favor of contradictory evidence or were overcome by other evidence,” former Indiana chief justice and now-Indiana Court of Appeals Senior Judge Randy Shepard wrote Wednesday.

As to his second allegation, “Axelrod’s reading of Outback stretches the holding too far,” Shepard wrote.

Axelrod’s third allegation also stretched Outback, the panel held, noting that “the jury heard the evidence Axelrod presented about the alleged civil conspiracy between WellPoint and Amgen but rejected it. … The trial court was not requiring Axelrod to meet a new threshold requirement but was using different words to say that, under these facts, he would have to have shown extreme misconduct to have warranted a new trial; but, he had not and could not.”

As to the fourth allegation, Axelrod cited to Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994), to argue he was only required to establish that misconduct occurred, not “clear misconduct or fraud or some other subterfuge.” But here, “the court contrasted the misconduct in Schultz and Outback with that of the present case and concluded that the conduct was dissimilar.”

Axelrod also raised misconduct claims on appeal, and Shepard noted “there were many instances before, during, and after trial, where counsels’ approach was not as one would hope or expect.” Even so, the trial court “was in the ‘best position to gauge the behavior of the attorneys and whether or not it impacts the jury and in what context.’ … We conclude after examining each of Axelrod’s claims, he has not established that the judgment was unfairly procured.”

Finally, the appellate panel rejected Axelrod’s challenge to the denial of his request for limited post-trial discovery, finding no error, let alone reversible error.

The case is Randy C. Axelrod, M.D. v. Anthem, Inc. and all of its affiliates, WellPoint, Inc., and Amgen, Inc., 19A-PL-1171.

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