In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 22-2664 & 22-2675
BRAD MARTIN,
Plaintiff-Appellant,
v.
ACTAVIS PHARMA, INC.;
ACTAVIS LABORATORIES UT, INC.;
and ACTAVIS, INC.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-04292 — Matthew F. Kennelly, Judge.
____________________
ARGUED APRIL 6, 2023 — DECIDED JUNE 20, 2023
____________________
Before FLAUM, ST. EVE, and PRYOR, Circuit Judges.
ST. EVE, Circuit Judge. Plaintiff Brad Martin was taking a
testosterone replacement therapy drug (“TRT”) called Andro-
derm when he suffered a heart attack. That made him one of
hundreds of claimants who took a TRT before experiencing a
significant cardiac event. The resulting lawsuits against TRT-
producing pharmaceutical companies were consolidated as a
2 Nos. 22-2664 & 22-2675
multidistrict litigation (“MDL”), and Martin filed his lawsuit
as part of that MDL. When defendant Actavis, 1 the company
that produces Androderm, reached a global settlement with
most of the MDL plaintiffs, Martin opted to take his case to
trial instead.
Ultimately, this was the wrong choice for Martin. After a
nine-day trial, it took the jury just thirty minutes of delibera-
tion to decide that Androderm had not caused his heart at-
tack. Hours later, Martin’s attorney, James O’Brien, received
the last documents in a months-overdue discovery produc-
tion for another Androderm case in the MDL on which he was
also lead counsel. These documents included a previously un-
disclosed letter from the Food and Drug Administration
(“FDA”) requiring Actavis to conduct a trial to study a poten-
tial causal link between Androderm and high blood pressure.
Armed with that letter, Martin’s attorney filed a motion for a
new trial, alleging that Actavis had intentionally withheld ev-
idence to protect its defense strategy against Martin. The dis-
trict court denied the motion, holding that because Actavis
was not required to disclose the letter and Martin had failed
to request it, the evidence did not warrant a new trial. Because
the FDA letter would probably not have resulted in a verdict
in Martin’s favor, we now affirm.
I. Background
In late 2012, Brad Martin was dealing with fatigue, loss of
energy, and low libido. In response, his doctor recommend-
ed TRT treatment. The doctor prescribed Androderm, which
1The appellees here are actually three companies: Actavis Pharma, Inc.;
Actavis Laboratories UT, Inc.; and Actavis, Inc., all of which produce An-
droderm in some capacity. We refer to them collectively as “Actavis.”
Nos. 22-2664 & 22-2675 3
Martin took for seven months before suffering a heart attack
in May 2013. Thankfully, he survived, but the attack dam-
aged his heart and left him anxious about the potential for an-
other incident. Martin soon realized he was not alone—hun-
dreds of people had suffered cardiac events while taking TRTs
and had filed lawsuits in federal court. The Judicial Panel on
Multidistrict Litigation consolidated those cases into an MDL
in the Northern District of Illinois before Judge Kennelly. In
2015, Martin filed his complaint against Actavis as part of that
MDL.
Actavis later entered into a global settlement agreement,
resolving roughly 600 Androderm lawsuits in the MDL. Mar-
tin opted out of that settlement, as did the co-plaintiffs in an-
other suit, Douglas and Laura Davis. The two cases pro-
ceeded with the same attorney, James O’Brien.
In January 2021, Douglas Davis (through O’Brien) made
discovery requests in his case. Actavis initially refused these
requests, but the district court ordered production of the re-
sponsive documents no later than June 22, 2021. Actavis im-
mediately produced just over 7,000 documents to Davis. But
less than a month later, on July 12, 2021, Actavis sent its coun-
sel an additional 101 responsive pages, which Actavis’s coun-
sel accessed that same day. These last 101 pages included the
letter from the FDA requiring Actavis to conduct a clinical
trial “to assess whether Androderm increases [blood pres-
sure] in hypogonadal men.” Actavis’s counsel prepared these
documents for production on August 10, 2021, but did not
produce them for another month.
Meanwhile, Martin’s jury trial had begun. Martin pre-
sented evidence from three clinical trials that indicated a link
between TRTs and heart attacks. The theory of Martin’s case
4 Nos. 22-2664 & 22-2675
was simple: his prescription Androderm, which did not have
a warning label about potential cardiac events, caused his
heart attack. Actavis argued that Martin’s poor health, not An-
droderm, caused his heart attack. Actavis’s defense focused
on eight aspects of Martin’s health that constituted risk factors
for heart attacks: (1) high blood pressure, (2) high cholesterol,
(3) smoking, (4) overweight BMI, (5) pre-diabetes, (6) family
history of cardiovascular disease, (7) restless leg syndrome,
and (8) sleep apnea. The timing here is important: Martin’s
trial started on August 5, 2021, nearly one month after Ac-
tavis’s counsel received the FDA letter requiring further in-
vestigation into a possible link between Androderm and high
blood pressure. Nevertheless, Actavis argued at trial that
Martin’s high blood pressure was one of the eight possible
causes of his heart attack. At no point during the trial did Ac-
tavis give Martin the FDA letter.
Martin’s trial ended on August 17, 2021, with a verdict in
Actavis’s favor. But just a few hours after the verdict, Actavis
tendered the remaining 101 pages of discovery in the Davis
case—the documents including the FDA letter—to O’Brien.
O’Brien then filed a motion for a new trial under Federal
Rule of Civil Procedure 59(e), contending that Actavis inten-
tionally hid the FDA-ordered study in the Davis case until
Martin’s trial was complete. O’Brien argued that the FDA let-
ter was new evidence that undermined the jury verdict. 2 The
district court rejected this argument, holding that none of the
discovery orders in the Martin case covered the FDA letter.
2 O’Brien also argued that the district court manifestly erred when it al-
lowed Actavis to admit the warning label from another of Martin’s medi-
cations. He has abandoned that argument on appeal.
Nos. 22-2664 & 22-2675 5
Because there was no obligation on Actavis’s part to disclose
the material in the first place, and because there was ample
information available to Martin and his attorney to put them
on notice about the existence of the FDA letter, the district
court denied the motion for a new trial. This appeal followed.
II. Analysis
“Relief under Rule 59(e) is an ‘extraordinary remedy re-
served for the exceptional case.’” Vesey v. Envoy Air, Inc.,
999
F.3d 456, 463 (7th Cir. 2021) (internal alteration omitted)
(quoting Gonzalez-Koeneke v. West,
791 F.3d 801, 807 (7th Cir.
2015)).
To succeed on a motion under Rule 59, a party must show
that: (1) it has evidence that was discovered post-trial; (2) it
had exercised due diligence to discover the new evidence;
(3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and (5) the evidence is such
that a new trial would probably produce a new result.
Cincinnati Life Ins. Co. v. Beyrer,
722 F.3d 939, 955 (7th Cir.
2013).
We think this case is easily decided on the final factor 3:
likelihood of a different result. Martin fails to show that, in
3 The district court denied the motion on the second factor, due diligence,
but “[w]e may affirm the district court judgment ‘on any ground sup-
ported in the record, so long as that ground was adequately addressed in
the district court and the nonmoving party had an opportunity to contest
the issue.’” Oneida Nation v. Village of Hobart,
968 F.3d 664, 686 (7th Cir.
2020) (quoting Am. Homeland Title Agency, Inc. v. Robertson,
930 F.3d 806,
810 (7th Cir. 2019)). This means that “the issue was raised and the non-
moving party had a fair opportunity to contest [it] in the district court.”
Locke v. Haessig,
788 F.3d 662, 666 (7th Cir. 2015). The parties properly
6 Nos. 22-2664 & 22-2675
light of the new evidence he points to, the jury would prob-
ably—not just possibly—have found in his favor. Id.; Matter of
Chi., Milwaukee, St. Paul & Pac. R. Co.,
78 F.3d 285, 294 (7th Cir.
1996).
A. Considerations for the Prejudice Prong
There is no rigid test for determining when newly discov-
ered evidence is significant enough that, had it been pre-
sented at trial, the jury’s decision would have been different.
But our caselaw reveals at least two relevant factors to the
probability analysis in this case: (1) the weight of the evidence
the plaintiff seeks to undermine, and (2) whether evidence al-
ready presented at trial served the same purpose as the new
evidence on which the plaintiff relies.
Our opinion in Jones v. Lincoln Electric Co.,
188 F.3d 709 (7th
Cir. 1999), reflects the need to weigh the evidence presented
at trial in determining whether a new trial is warranted. In
Jones, we affirmed the denial of a motion for a new trial based
on later-discovered evidence that would allegedly have dis-
proven a defense expert’s trial testimony. We found it un-
likely that the new evidence would have led to a different re-
sult in part because the plaintiff had already discredited the
expert on cross-examination.
Id. at 726. The plaintiff also had
offered his own expert who had “undercut the weight” of the
allegedly false testimony through his own research.
Id. at 726,
735. Accordingly, Jones supports that where the trial evidence
briefed the fifth prong of the Rule 59(e) analysis, probability of a different
result, both before the district court and on appeal. Accordingly, we pro-
ceed directly to this final factor.
Nos. 22-2664 & 22-2675 7
has already been effectively discredited, the new evidence un-
dermining it is unlikely to alter the outcome of the trial.
We have also considered whether other evidence that was
admitted at trial served essentially the same purpose as the
new evidence would. In Marcus & Millichap Investment Ser-
vices of Chicago, Inc. v. Sekulovski,
639 F.3d 301 (7th Cir. 2011),
we affirmed the district court’s refusal to grant a new trial
based on a post-trial email from one of the witnesses. The de-
fendant insisted the email would have so successfully im-
peached the witness in front of the jury that a new trial was
warranted. Id. at 314. But we affirmed the finding that this did
not make a new outcome probable, because that witness’s
credibility had already “been called into question throughout
the trial,” id., and “[t]he jury surely harbored no doubts about
[the witness’s] readiness to attack” the defendant. Id. Because
the email would just have been more of the same, it did not
warrant a new trial.
B. The FDA Letter Does Not Make a New Outcome Probable
We now apply this framework to the FDA letter and Mar-
tin’s trial.
Martin argues that the FDA letter would probably have
led the jury to decide in his favor. As he recalls the trial, Ac-
tavis premised nearly all of its defense on the argument that
his high blood pressure, and not Androderm, caused his heart
attack. If the jury had believed that Androderm could have
caused the high blood pressure, then Martin maintains it
would certainly have reached a different conclusion. But he is
both wrong about the focus of the trial and wrong about the
likely impact of the FDA letter. Accordingly, he fails to meet
8 Nos. 22-2664 & 22-2675
the high bar of a probability that this evidence would have al-
tered the outcome of his trial.
First, like the expert testimony in Jones, the blood pressure
evidence that the FDA letter would undermine was not very
important to Martin’s trial. A thorough review of the record
reveals that high blood pressure was not the crux of Actavis’s
defense. To be sure, the record of the nine-day trial is replete
with references to Martin’s uncontrolled high blood pressure
as a potential cause of his heart attack. But Actavis did not
focus on high blood pressure alone—it mentioned high blood
pressure as one of eight potential causes of Martin’s heart at-
tack besides Androderm, all of which received significant at-
tention during the trial. Each time Actavis referenced high
blood pressure, it raised at least one other risk factor; and Ac-
tavis emphasized that any risk factor, standing alone, was suf-
ficient to cause a heart attack. 4 In fact, it was only when Martin
presented blood-pressure-specific evidence or testimony that
the defense mentioned high blood pressure as a standalone
risk factor in rebuttal.
Even if the high blood pressure evidence had been more
important to the trial, the considerations highlighted in Mar-
cus make clear that the FDA study would not have made a
new outcome probable. Martin’s attorney had already under-
cut the significance of Martin’s high blood pressure at trial.
His attorney, for example, had cross-examined defense wit-
nesses on Martin’s high blood pressure and whether it was
4 As noted above, these risk factors were: (1) high blood pressure, (2) high
cholesterol, (3) smoking, (4) overweight BMI, (5) pre-diabetes, (6) family
history of cardiovascular disease, (7) restless leg syndrome, and (8) sleep
apnea.
Nos. 22-2664 & 22-2675 9
actually under control. See Marcus, 639 F.3d at 314; see also
Jones,
188 F.3d at 735. And Martin’s own expert testified ex-
tensively about Martin’s high blood pressure, suggesting that
it was not as serious as Actavis claimed. In his medical opin-
ion, Martin’s blood pressure was “reasonably controlled,”
and Martin’s numbers showed there was “[no]thing … to in-
dicate that he was in hypertension crisis.” Because Martin had
already undermined the evidence that his high blood pres-
sure had caused his heart attack, it is less likely that a study
investigating a possible link between Androderm and high
blood pressure would have altered the jury’s decision. Like in
Marcus, the FDA letter would have been, at best, more of the
same.
Ultimately, removing Actavis’s blood pressure argument
would leave seven alternative causes for Martin’s heart at-
tack. And the significance of Martin’s blood pressure had al-
ready been undercut throughout trial. Taken together, the in-
troduction of the FDA letter simply would not make a differ-
ent outcome probable.
The holding of the district court is
AFFIRMED.
