Buddy" Caldwell, Attorney General Ex Rel. State of Louisiana v. Janssen Pharmaceutical, Inc. "

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
27

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
28

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

29

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.
30

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.
31

AFFIRMED.

32