Axen v. American Home Products Corp.
Docket: 9509-06363 CA A97249
Court: Court of Appeals of Oregon; April 21, 1999; Oregon; State Appellate Court
American Home Products Corporation (AHP) seeks reconsideration of a prior ruling related to the admission of pharmaceutical industry newsletters at trial, which discussed AHP's issues with the FDA regarding the drug Cordarone, implicated in plaintiff Douglas Axen's loss of vision. AHP objected to the newsletters on grounds of being cumulative, prejudicial, and hearsay, but the trial court overruled these objections. On appeal, AHP claimed the court erred by allowing inflammatory evidence unrelated to the injury, yet did not specifically identify the newsletters in its appeal arguments. Instead, AHP's appeal focused on other documents, including a press release and internal memoranda. The court noted that AHP failed to reassert objections to the newsletters and did not adequately link them to its appeal. Consequently, the court found that the inclusion of the newsletters in AHP's exhibit list was insufficient to challenge their admission, emphasizing the necessity for specific arguments on appeal regarding each piece of evidence. The court granted reconsideration on certain issues but upheld its original decision, modified to clarify these points. AHP's appeal primarily focused on the admission of a press release and FDA letters, with no substantial reference to newsletters, indicating that AHP did not intend to challenge the newsletters on appeal. The court concluded that AHP failed to reassert its objections to the newsletters during the appeal process. Regarding AHP's Eighth Amendment challenge to the punitive damage award, the court recognized an error in its original opinion for not explicitly addressing the challenge. It noted that the state’s claim under ORS 18.540 necessitates consideration of the Eighth Amendment’s prohibition on excessive fines, which are distinct issues. However, the court maintained that its original decision stands, as it had previously clarified in Tenold v. Weyerhaeuser Co. that the Eighth Amendment does not apply to civil cases without governmental prosecutorial involvement. AHP's assertion that Tenold was incorrectly decided due to its failure to account for certain Supreme Court cases was dismissed, as those cases involved government actions that were not present in the current case. Reconsideration was allowed, and the original opinion was modified but upheld.