* Th is decis i on was originall y issued as an “ unpublished decision”

fil ed on Sept ember 26, 2003. On December 4, 2003, the court des ignat ed the opinion as one recommended for ful l-t ext publicati on.

** The Honorable Nancy G. Edmunds, Unit ed Stat es Dis tri ct Ju dge f or the Eastern Distri ct of Michigan, sit ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0449P (6th C ir.) File Name: 03a04 49p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

A LPINE I

NDUSTRIES , I

NC . and W IL LI AM J. C ONVE RSE , Defenda nts-Appe llants. X - - - -
> , - - - - N No. 01-5759

Appeal from the United States District Court for the Eastern District of Tennessee at Gr eeneville. No. 97-00509—Dennis H. Inman, Mag istrate Judge. Argued: December 4, 2002 Decided and Filed: September 26, 2003 *
Before: BOGGS, Chief Judge; GUY, Circuit Judge; and

EDMUNDS, District Judge. ** 2 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

_________________ COUNSEL

ARGUED: J. Ronnie Greer , Gr eeneville, Tennessee, for App ellan ts. Peter R. Maier, UNITED STATE S DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRI EF: J. Ronnie Greer, Greeneville, Tennessee, W i lliam A. Er hart, Gr egory B. Davis , ERHART & ASSOCI

ATES, Anoka, Minnesota, for Appellants. Peter R. M aie r, D oug las N. Le tter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________

OPINION

_________________ BOGGS, Chief Judg e. Alpine Indu stries, Inc. and William J. Converse, Alpine’s President and Chief Executive Officer, (collectively

referred to as Alpine ) appea

l a judgment aga

inst the company in an e

nforcement action brought by the government

for violating a Federal Tra de Commission ConsentOrder (the Consent Order). The Consent Orde r forbade the company, a

norganization

engaged in marketing and distributing air-cleaning devices, fr om making product claims without the

support of

compete

nt and re liable scientif ic evidence. The case was bifurc ated i n to a liabil ity phase, which was tri ed in front of a jury in the fall of 1999, and a remedy

phase, which

was tried by

the court in January 2001. In Novem

ber 1999, the jury f

ound that Alpine had violated the Consent Order. In par ticular, the jury found tha t Alpine had adve

rtised tha t its air cleaning

products removed
over 60 separately

titled but in m an y c ases overlappingNo. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 3

1 Styre ne, Benzene, Dust Mites, Bacteria, Allergens, Formaldehyde, Du st, Po llens, M old S por es, Ch emic al Ga ses, Pa rticulate s , Mi ldew, Legio nella , Dry C leaning Chem icals, Skin Flakes, Du st Mite Fec es, Ye ast, Fungi, Gases, Chemi cal Fumes, Mold, Germs, Cleanin g Product Fumes, De ad S kin, M icrob iolog ical G rowth , Skin, H air , Che micals, Dried-up Rat Urine, Microbi ological Organisms , Dried- up Mouse Urine, Streptoco ccus, Staphylococcus, Aspergill us Fung us , Salmonel la, Cockroach Eggs, Ca t Dand ruff, Asb est os, R at Ur ine, Le gione lla, Solid Particu late , Microorganis ms, Microbial s, Volat ile Org anic Chem icals, Org anic Ga ses, C at Dande r, Vi ruse s, Dry Cl eani ng Fl uids , Pie ces of Insects, Micro bes, Dirt, Da nder, E-co li, Gas Con taminants, Car Fu mes, CandidaYeas t, Dis in fe ctant Fumes , Co ck roach Pieces, Animal Dander, Traffic Fum es, Smog , Cockro ach Fec es, Pencillium, and Tub erculosis. categories of indoor

air pollut ants, 1 controlled ambient

ozone levels, and produced various health benefits, with out competent

and reli able sci entific e

vidence to support

these claims. However, the jury also found that Al pine’s p roduct claims regar

ding the ability of its air cleanin g produ cts to
remove smoke, tobacco smoke, and cigarette smoke , were supported by competent and reliable scientific evidence. The districtcourt’s final judg

ment ag ainst

Alpine wa s entere d in April2001 and included, in addition to injunctive relief, an award of $1,490,000 in civil penalties. Following the di s trict court’s final judgment, Alpine filed motions to amend the district c ourt’s jud gment, for JNOV, or for a new tri al. The d

is t rict cou

rt denie d these mo tions. Alpine appeals the district court’s denials of its motions t o amend the judgment and for JNOV, arguing that the government

did not prese nt suffic ient evid

ence tosupport the jury’sfinding s. Alpine a

lso appeals the district

court’s denial of its motion for a new trial, arguing that the jury ’s verdict is interna lly inc onsiste nt and that the special verdict form was
wo rde d in such a way a s to place the burden of proof improper ly on Alpine instea d of t he government. Alpine addition al ly

argues that it was entitled to seek judicial reformation

of the underlying

Consent Order on the grounds of mutual mista

ke and tha

t it was p rejudiced by the district court’s exclusion of parol evidence surrounding the Consent 4 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

Order. Finally, Alpine ar gues that the injunctive r elief embodied in the Permane nt Injunction issued by the district court, intended to prevent further repr es entations by Alpine regarding the efficacy

of its air-cleaning machines without competent

and reli able sci entific evid ence, does not
accura tely reflect the jury ’s verdict

and that furthermore, the penalty imposed by t

he distric t court a gainst Alpine is excessive. For

the reasons that follow, we affirm the district court’s judgment.

I
In the early 1990's, the FTC conducted an investigation of claims made by A

lpine in promoting, advertising, and selling its air-cle aning ma

chines. The investigation concluded when Alpine agreed to an FTC Consent Order, e ffective October 2, 1995, whic

h reads i n releva nt part:

For the purposes of this Order, the following definitions sh al l a pp ly:

A. The term “air cleaning prod uct” shall mean any product, equipmen

t, or appliance designed or advertised to remove, treat, or reduce the leve l of any pollutant( s) in the air.

B. The terms “indoor air pollutant(s)” or “pollutant(s)” shallmean

one or more o f the f

ollo wing: formaldehyde , sulfur di ox id e, am mo ni a, tr ic hl or et hyl en e, benzene,
c hlorofor m, carbon tetrachloride, odor s, nitrogen dioxide, mold, mildew, bacteria, d ust, cigarette smoke, pollen, and hyd rocarb ons, or an

y ot her ga seous or p articula

te matter found in indoor air.

. . .No. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 5

I IT IS ORDERED that

[Alpin e] in connection with the manuf acturi ng, labell ing, advertising, promotion , offering for sale, sale, or

distributi on of any

air cleaning product . . . do forthwith ceas e and desist from repres entin g, in any manner, directly or by implication,

A. such product’s ability to eliminate, re m ov e, clear, or clean any indoor ai r pollutant f

rom a use r’s envi ronment;
or

B. such product’s ability to eliminate, re move, clear, or clean a ny q uantity of indoor air pollut ants fro m a

user’s environment;

II IT IS FURTHER

ORDERED that [Alpine] in connection with the ma nufact uring, belli ng, adv ertis ing, promotion, offering for sale, sale, or distributionof any air cleaning product

. . . do forthwith cease and desist from repres entin g, in any

man ner, directly

or by implication, that:

A. T he us e of ozone is more effective in cleaning or purify ing indoor air tha

n other a ir clean ing methods;

B. The pr oduc t does not create harmful by -products; or

C. When used as directed, t he pr oduct prevents or provides relief from any medical or health-related condition;

unless at the time of making such repre se ntation, responde nts possess and rely upon com petent and
re liablescientif

ic evide nce that substantia

tes t h e representation. 6 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

III IT IS FURTHER

ORDERED that [Alpine] in connection withthe manufa cturing, labelling, advert ising , promotion, offering for sale, sale, or distribution of any air cleaning product . . . do forthw ith ceas e and de sist fromrepresenting, in an y manner, directly

or by implication, th e e ff

ic ac y, performance, or health-related benefit of any such prod

uct, unless, at the time of making suchrepresentation, respondents possess and rely upon competent

and re liable evidence, which wh en appro priate must be competent and

reliable scientif ic evidence, that substantiates the representation.

. . . . OnDecember 30, 1997, the government initiated an action alleging violations of the Consent Order, requesting injunctive relief, consumer redress, and civilpenaltie s again st Alpine. Alpine requested a jury trial, which the district

court granted with respect to the issue of liability for civil penalties. OnNovember 1, 1999, after a fourteen- day trial, the jury filled out a

special-verdict form containing over 900 questions

. The jury

found that

in all cases but smoke, tobacco smoke, and cig arette

sm oke, Alpine’s claims were not supported by compete

nt and reliable scientific evidence.

II
Directed Verdict / JNOV Alpine moved for a directed verdict at the conclusion

of the government’s casein chief and ag ain at the close of evidence, and later moved for a judgment notwithstanding the verd ict. We review the district

court’s denial of Alpine’s motions for judgment as a m atter of

law (motions for a d

irected verdict ) and renewed motion for

judgment as a matter of law (motion for judgment notwithstanding the verdict) de novo

. Moore v. KUKA Welding Sys. &

Robot Corp. , 171 F.3d 1073, 107 8 (6th Cir. 1999) (citi ng K & T Enters. v. Zurich Ins. Co. , 97 F.3d 171 , 175 ( 6th

Cir. 1996) and Weh r v. Ryan ’s FamilyNo. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 7

Steak Houses , 49 F.3d 1150, 1152 ( 6th Cir. 1995)). In doing so, we use the same standard of review used by

the district court. Phelps v. Yale Sec. , 986 F. 2d 1020, 1023 (6 thCir. 1993). In or

der to pr evail, Al pine must d

emonstra te that “no
reasona ble juror could have found for the nonmoving party .” Moore, 171 F.3d at 1078. In apply ing this standard, we
canno tweigh the credibility of witnesses and cannot substitute our judgment for

that of the jury. K &T Enters. , 97 F.3d at 175-76. Instead, we

are to view the evidence

in a light most favorable to the government and g ive the government the benefit of all reasonable inferenc es. Ibid

. Alpine contends that the burden was on the gov ernment

to establish a prima faci

e case an d that the gover nment did

not meetthis initial

burden, so that Alp ine is enti tled to a judgment as a matte

r of la w , notwithstanding the jury’s verdict

. The government conceded ina pretrial hearing that it had the burden of proving at trial 1) that Alpine had made claims or repre sent ations that fell within the terms of the ConsentOrder, and 2) tha t Alpine di d not posse ss a nd r ely uponcompetent and reliable scientific e v idence a t the time suchclaims or representations were made. Alpine takes issue with the second requirement in this appeal. Alpinecontends t hat the government did not present sufficient proof tha t Alpine did notpossess and rely upon comp etent an

d reliab le scientif ic evidence at the time it made repres entat ions regarding all of the indoor air pollutants listed on the jury form(with the exception of smoke, cigarette smoke, and tobacco smoke), a

nd reg arding

th e heal th benefits bestowed
o n users by the produc t. Alpine does not dispute the
s uf ficiency of the evidence presented by the government regarding the produ

ct’s a bili ty to maintain indoor ozone
concen trations a t a partic ular lev el. Alpine, however, misconstrues the level of proof necessary to establish a prima facie case u nder t hese cir

cumstanc es. During the hear

ing that led to the

order e st abl ishing the shifting burden of proof in this cas e, som e explanation was offered as to how the government wou ld fulf ill this 8 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

require ment, recognizing that the g overn ment was being asked to prove a negative. The g ove rnment ’s lawyer stated that she understood the government’s burden as being me tif experttestimony were off ered for the pro pos ition that such experts were unaware of scient ific data supporting Alpine’s claims (or, if

testimony

has been offered in support of Alpine, whichex pla ined that the information produced by Alpine pursuant to the Consent Order

in support

of their claims was insufficient

or incompetent). The court stat ed tha t it “was inclined to agree” with the gover

nment lawyer’ s assessment and that upon receipt of such testimony , A lpine would be expected to rebut the government’s proffer and the ju ry would determine whether

o r n ot Al pi ne ha d d on e s o e ff ec ti ve ly. Given that the Consent Ord er puts th e onus on Alpine to make available on request all information relied up on b y Alpine in making repres entation s rega rding the effic acy

of its air-cle aning d

evices, we agree that the gover nment’s burden for making a prima facie cas e is sa tisfied if evidence was offered at tri al that the information provided pursuant to the Conse ntOrder was either insufficient or incompetant. T h e government

certainly ne ed not

have proven that there was no competent

or reliable basis up o n which Alpine might have rested its claim. If the experts knew of none and information received from Alpine was insuffic ient to provide such a basis
orwas deemed unreliable, it was up to Alpine to prov id e further information that would convince the jury

. During the two-week

long trial, the government produced experts inthe fields of

air pollution, ozone chemistry, and the eff icacy of air cleaners, all of whom testified that they wer e unaware of any compe

tent and reliable evidence to support various claims made by

Alpine. These experts also discussed tests they had part

icipated in, which

furth er d iscredited Alpine’s claims. Moreover, t h e FTC off

icer as signed t

o Alpine’s case testified that the evidence submitted by Alpine to the FTC in support of its claims regarding the e fficacy of its air-cleaning machines was e valuated by experts and deemed to be insuf

ficient. In re sponse, Alpine provided its
ownexperts, who descr ibe d in their testimony the variousNo. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 9

2 For example, govern ment ex pert R ichard Sextro noted in his testi mony that

“we use d environment al t obacco smo ke, pa rtly beca use it

was represen tati ve of t ypicalindoor part icle s, .

. . if one looks at size de penden t remova l characteristics of any of the filters, those charact eris tics will be the same whethe r . . . it’s a one micro mete r partic le that’s environmental tobacco smoke or whether it’s a one micro meter dust partic le.” Government expert Rich ard S haughnes sy st ated: “Tobacco smoke is, as I s aid, i t is perfect dispers ion, y ou know, looking at particles, to be looking at particle reducti on within a space. I t provides you [sic] t he range of pa rticles that a re of co ncern

. . . . [I]t gener ates uni form di spers ion and it is of

ten used by i nvest igat ors inthe f ield t o track t

he perfor

mance of air cle aning d evice s.” tests they had done on the a ir-cleaning machines, and the evidence they had

relied on in suppor

t of the c laims made by Alpine.

Inparticular, Alpine points out that the government’s experts focused on tests done on particles in tobacco smoke and states that there was no evidence presented reg arding any of the other particu la t es such as dust, animal dander, insect parts, and so on. On

this basis, Alpine contends that a verdict must be directed in

its favor with regard

to all particulates and
some microbe

and alle rgen c laims. However, the government experts explained

in th eir t estimony

that the r esults of t hese tests can be a

ppli ed to oth er particulates, such as those at i ssue in this case, since they a re in the same size range a s those found in tobacco smoke. 2 As it turns out, Alpine does notdispute this fact, but instead argues that becaus e the resultsgarnered from the tests on tobacco smoke can be extrapolated

to all othe

r partic ulat es within t

he sa me siz e range, i n cluding microbes, and because the jury found that Alpine’s claims regarding the ef ficacy of its air-c l eaning devices with respect to tobacco smok e we re supported by reliable and competent scientific evidenc e , it is not pos sible for the evide nce to sup port the ju

ry ’s finding s again st

Alpine
onthe other

particu lates and microbe s in that si ze ra nge. Alth ough we wil l addr ess th is argu ment, it is not pro perly raised here , as it go es not to the sufficiency of the evidence 10 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

3 Dr. Cole explai ned that wi thin thi s “a rea of

bioci de ef

fi cacy or effectiveness, the s tandard t hat’ s been set

for decades has been ef fica cy
or eff ecti ven ess bas ed upo n ac hi evi ng a th ree log redu cti on. ” Insum , although the t ests did show t hat some org anisms were ki lled, more than

one in one thousa nd we re left alive, w hich is not co nsid ered t o be effective b y the indu stry. pr esented by the g overnment in their prima facie ca se, bu t rather to the consistency

of the jury’s ve

rdict.
Next, Alpine ar

gues tha t the gov ernment

did not add

ress Alpine’s claims that its devices introduce ozone intothe air, whichkills micr obes through ionization. However, gover nme nt ex pert Eugene C. Cole testifed to the fact that tests publish edby the America n Industrial Hy

giene Association demonstrated that exposure of a

large variety

of organ isms, including microbes and fungi, to con centr ations of gas-phase ozone at the same or at higher concentra tions than those claimed to be maintained by the Alpine air-cleaning products , had an impact on some organisms but were not ultim ately

effective at re

moving a ny o f them ac cording

to ind ustry s tandard s. 3 Further

more, Cole

testifie d that in his expertopinion he was unaware of reliable scientific evidence to support the cla ims made by Alpine with re spect to the impact of ozon e on micr

obes and fungi. T his testimony i s sufficient evidence to support the ju ry’ s f in di ng s o f l ia bi li ty. Alpine further

contends

that bec ause n one of the gover n ment experts were medical doctors, toxicologists, or health o ffic ials, they were

not qualified to opine on whether its air-cleaning

machines provide medical and health-related benefit s and

their tes timony

cannot, therefore, be considered sufficient evidence to support the jury’s finding of liability on this quest ion. This argument is unpersuasive. Alpine’s experts and the government’s experts did not disagree on whichin door p ollutants c ause hea lth proble ms, the issu

e in dispute between them was wh et her Alpine’s air-cleaning products were capable of removing the polluta

nts that cau se health prob l ems. Thus, the exper tise nee ded unde

r theseNo. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 11

circumstances was not that of a medica l doctor, toxicolog ist,
or health of

ficial, b ut rathe r an exper

t o n th e removal of ind oor air pollutants. The jury simply determined that the government’s experts we re more credible on this point and we
are compelled

to defer to the jury ’s judgment. K &T Enters. , 97 F.3d at 175-76.

Fi na ll y, Alpine contends that the governmen t off ered no proof t hat Alpine did not rely on compete nt and reliab l e evidence for its claims with respect to its produ

ct’s abil ity t

o remove certain

chemica l gases from indo or air: sp ecifica lly styrene, isoprene , d-limone ne, and a

lp h a-pinene. And moreover, that Dr. Weschler’s testimony for the government supported Alpine’s claims that hydrog en sulfide, 4- ethenylcy clohaxene, 4-phenylcy

clohaxene, double-bonded volatile organic chemicals, odiferous che micals, acro l ein, body odor, indole, scatole, garlic odor, and thyocy anite co uld be reduced through the use of ozone.

Dr. Weschler

did in fact testify

to the fac t that even a relative ly small concentration

of ozone tends to break down styrene, hydrog ensu lfide, 4-etheny lcyclohaxene, and 4- phenylcy clohaxene, which suggests that Alpine might pr

evail with respect to these compounds at leas t . Yet, if one views the evidenc e in

a light most favorable to the government and gives the government

the benefit of all reasonable inferenc es as we must, one finds that there was other evidence pre sented throu gh Dr. Weschler’s testimony a n d Dr. Cole’s expert report ongas-phase ozone that c an ex plain the ju ry’s find ings
onthese chemical pol lu tan ts . It is Alpine’ s content ion that a ll of these pollutants are broken down and thus “removed” from the environment

b y Alpine’ s air- cleani ng devi ces th rough their reaction with ozone. Howeve r, there are two p roblems with this theory. First, this pro cess re quires a certain concentration

of ozone, and the evidence presented in Dr. Cole’s report and through o ther ex pert testimony is that Alpine has not provid

ed relia ble test r esults tha t demonstr

ate the ability of its machines to maint ain th at level of ozone concentration. In fact, Alpine does not contest on appeal the 12 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

jury ’s separ

ate find ing that Alpine’s claim that “[t]he sensor in[its ] air cleaning products maintains indoor ozone concentrations at .05 parts per million or l ess” is not supported by c ompetent

and reli able sci entific

evidence. It is notunreasonable to a ssume that if the machine ’s ability

to maintain a conce ntration o f ozone is u

nsubstant iated, th en its ability to remove

certain pollutants by

way of a rea ction with ozone is also unsubstantiated. Second, we return to Dr. Weschler’s testimony. Alth ough Dr. Wesc h ler did sa

y that conce

ntrations of ozone will general ly r eact wit

h compounds contai

ning dou ble bonds, such as the ones mentione d above, he parti cularly noted that “it ’s an important thing to remember when we speak abou t
ozone reacting with compounds in the air because often you might i nitiall y ha

ve one po llutant, a

nd you’ll res

ult [sic] in tw o pollutants.” In other words, rather than “cleaning” the air, as suggested in Alpine’s literature , the ozone introduced b y Alpine’s air-cleaning devices may change a given molecule into two new com

poun ds, which may be more concerning

than what existed p rev iously. As an example of this phenomenon, Dr . Wes chler described an experiment he had conducted in which ozone had in fact lowered the amount of styrene, 4-e

thenylcy clohaxene, and 4-pheny

lcyclohaxene ina controlled environment , but had nevertheless increased the level of forma

ldehy de and a cetalde hyd e in the air. Given this informat

ion, it is not

unreasonable for a juror to determine that a claim by Alpine that a user’s environment will be cleane d of

a polluta nt by its air-c leaning

product i s unsupported by competent and r eliable scientific evidence, when in fact the pollutant may be broken dow n into other,
even more noxious, pollutants. Thus, viewedina light mo st favora ble to the government, there was sufficient e vidence present ed at tria l with res pect to th e jury ’s finding s.No. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 13

III Motion for a New Trial

A district court’s decision to deny a ne w trial on the basis of the weight of the evidence shall be re versed only upon finding an

abuseof discretion. See Bruner v. Dunaway , 684 F.2d 422, 425 (6th Cir. 1982). Alpine contends that the jury verdict was inconsis tent a

nd irreconcilable, that the district court allowed for an improper shifting of the burden

of proof inthe jury ’s speci al v erdict form and through a comment made to the j ury , and that the distri ct court

improper

ly excluded evi dence relating to the negotiation history of the ConsentOrder, consumer satisfaction survey s, and marketing informationthat Alpine believe d would have allowed the jury to perce ive Alpine ’s marke ting promotions in c ontext.
A. Incon sistent Ve rdict?

As we noted in s ection II , the go vernmen t’s expert s in addressingthe via

bility of Alpine’s claims reg arding particulat es fo cused on testing the ability of various devices inremoving

particle s found in t

obacco smo k e, which the experts testified to be representative of the particles at issue in thi s case and therefore a good surrogate for testing the efficacy of a device in removing these other pa rticles. Alpine accept s this premise, but argues on appeal that if the government’s exp erts ar e right, the jury ’s verdict must be considered

inconsistent and irreconcilable, since the jury found Alpine’s claims regarding the a bility of its air-cleaning devices to remove smoke was supported by compet e nt and reliable scientific ev idence , but that none of its other cl aims made with resp ect t o other particulates were supported by suchevi dence . In sum, Alpine argue s that if the results of smoke t estin g c ould be extr apolate d to all othe

r indoor a

ir particu late at issue, the n it would a

ppear that the jur

y, b ecause i tfound for Alpine on smoke, had no basis for a findin g a gainst Alpine on

all the other part

iculates listed on the ju

r y verdict form. This logi c would a lso extend to

the question of 14 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

microbes and a ller gens in particulate form and within the relevant size range.

In Gallick v. Baltimore and O.R. Co. , 372 U.S. 108, 119 (1963), t he Supre me Court st

ated in r elevant part: [I]t is the duty

of the co urts to att empt to harmonize the
answer s, if

it is possible under a fair reading of them . . . . We t heref

ore must attempt to reconcile the jury ’s finding s, by e

xegesis i f nece ssary, before we are free to disregard the jury ’s speci al verdi ct and re mand the c ase for a ne w trial.

The Sixth Circuit has also held that “[w]hen requested, a trial
c ourt fa ce d w it h a n a pp ar en t i nc on si st en cy b et we en a j ur y’ s answers and the c ourt’s instructions must attempt to

reconc ile the two.” Holloway v

. McInty re , 1988 WL

7961, Nos. 86

- 1001, 86-18 98 at * 3 (6th Cir. Feb. 4, 1988) (citi ng Waggoner v. Mosti , 792 F.2d 595, 597 (6th Cir. 1986)).

The districtcourt reconciled the apparent inconsistency in the jury’s verdictby determining that the jury

had in fact been referring to “visible smoke” rather t han the particu

lates in smoke, and we ar e persua ded that t

his is a re asonable conclusion. Alpine’s re asoni ng assumes that the jury ’s favora ble det ermination on

the smoke

removal claims reflected an implicit determination that Alpine’s air purifiers effectively

removed the particulate elements of smoke, when infact smoke contains much more th an p art icu lat e ma tt er. In fact, Dr. Wesch

ler note d in his test

im ony at tr ial that in addit ion to the particulates present in tobacco smoke, there are “thousands of chemicals.” Furthermore, the jury

was presented at

trial with evidence
co n cerning

the removal of “visible smoke.” Alpine had a videota p e demonstration, which showed its air-cleaning machines removing visible smoke from a sm all transparent chamber. The jury

also hea rd from the gove

rnment’s expert, Dr. Sextro, who

stated in d

oing his t ests on pa

rticulat es inNo. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 15

smoke: “[W]e didn’t test [ t he effectiveness of the filter againstsmoke] ga ses. We did n’t look a t – I mean , I don’t know if there was any

absor ption by the HEPA filter of a ny of the e nviro nmental smoke gases or not; that wasn’t the purpose of our study.” B ased on this information, the jury could have concluded that Alpine had adequa te substantiation to claim that its devices remov ed“visible smoke,” which would be entirely c o nsisten t with the rest of the jury’s determinations with regard to particulate claims. B. Burden of Proof Alpine contends

that the d

istr ict c ourt improperly shifted the burden of proof during the c ourse of the trial. Alpine maintains that the jury’s spec ial v erdict f orm is impr

operly worded, with the se cond p art of each qu estio n refl ectin g a burden on Alpine to provide scientific evidence of thevarious contaminants that it cou

ld remove. That part of the question states “was the claim [made by Alpine with r ega rd to a particular contaminant] supported by compete nt and reliable scientif ic evidence at the time the claim was made?” Alpine had request ed instead that a different text be used: “Has Plaintiff proved that the Defendants did not possessand rely uponcompetent and reliable scientific eviden ce for c laims that their air purifi ers el imina te, r emov e, cl ear o

r cle an [a particular contaminant]? Yes_____ No_____” Alpine also point s to a statement made by the districtjudge
near the end of trial inwhich he addressed the jury and stated in relev ant part : [Y]ou recall that your

area of inquiry

will be if Alpine and Mr. Converse made certain represe ntations as described inthe Consent Order, and y ou will be given a
co py of the Consent Order. . . . That will be the firs t thing for you to dec ide, did Alpine after the date of that ConsentOrder ma

ke repr esentat ions as, a s descri

bed in the Consent Order, Question No. 1. Ques tion No. 2, if they did, with regard

to any particular

representation, did 16 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

Alpine and or Mr . Convers e, as the case ma y be , have in their possession at that time and rely upon at that time on competent

and reli able sci entific e

vidence . Let t hat be burned into the back of your

mind because that is the
area of inquir

y; that ’s what you will be ca lled upon ultimately to decide. Alpine argues t hat the ve rdict for m was ultima

tely prejudicial and that a s a resul t, Alpine d

id not rec eive a f

air trial.

The district c ourt res

ponded to Alpine’s claims, noting that:

The jury was

instructed, on more than one occasion, that the gover nment h ad the burden of proving 1) that the defenda nts made a particular representation, 2) w hich
was not supported by competent a nd reli able sci entific evide nce. The wording on the verdict form could not reasonabl y

be read as

contrad icting the Court’s

explicit instructions regarding the burden of pr oof.

A special verdict form will only

provide grounds for

reversal if it is confu sing, mis leading , or prej udicial w hen viewed as
a whole. See Host

etler v. Consolidate

d Rail Corp ., 123 F.3d 387, 393 (6th Cir. 1997). In this case, the form shoul d b e viewed along with the jury

instructions, which clearly stated wh er e t he bu rd en of

pr oo f l ay:
Th e verdi ct form a sks y

ou a set of

two questi ons as to each allege d claim: F irst, has the government proven by
a preponderance of the evidence that Alpin e and Mr. Converse, individually and as an officer

of Alpine, made
a claim covered by

the terms of the consent order; and, second, if

yes , d id th e g ov er nm en t p ro ve by a preponderanceof the evidence that the defendants at the time such cla

im was mad

e did not posses s and rel

y upon competent

and reli able sci entific e

vidence to substantia

te it, that claim or representation?No. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 17

Thesejury instructions reflec t the p roper placement of the burden of proof, which

starts with the government and moves to Alpine, once the g overnme nt offers enoug

h evidenc e to make its prima facie case.
C. Parol Evidence Alpine objects to the district co urt’s u se of the parol evidence rule to exclude evidence of the negotiations with the FTC that led to the execution of the Consent Order, w hi ch ultimately

prevent ed Alpine

from expla

ining tha

t it understood

the Orde r to cover only a ssertions made by Alpine with regard to reducing the

level of a cont amina nt by a specific percen tage a nd not ge

neral sta tements ma

de with regard to redu cing th e level of contaminants. The district court, however, properly

conclud e d that the Consent Order unambig uousl y c overed claims that Alpine’s devices eli minated

portions o f contam

inants whe

ther or n ot su c h claims were expressed as a numerical perc entage.

D. Exclusion of Consumer Reports and Marketing Information Alpine also appe als the distri ct court ’s decis ion to exclude testimony concer ning consumer sa

tis fa ction surveys and marketinginformat

ion. Alpine

argue s th at th e district court abused it s discretion in precluding the testimony that Alpine wished to include relating

to the context in which the various

r epr esentations at issue in this case were made by Alpine. The government’s position, upheld by the district court, was that it was necessary

only for the g overnment to show promotional brochur

es, videotap es, audio

tapes, and training tapes, in order to demonstrate that a claim had been made

. Alpine argued

that the c ontext in whi ch these materia ls were disseminated

was an importa

nt factor to be considered when determ ini ng whether

the repr esentat ions were

directe d to
consumers or instea

d to dealers. The government argue s that whether the statement was made to a consumer or to a dealer is immaterial for purposes of the Consent Or der, whi ch only 18 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

refers to “representations” and does not specify to whom those repres enta

tio ns will be made. Alpine argues that the ConsentOrder must be interpreted in light of its principal purpose, which was to prevent unsubstantiated claims about the effica cy of Alp ine’ s air pur

ifiers f rom being

made to
consumers.
The Consent Order is unambiguous on this point, stating repeat edly t hat Alpine was not to make the relevant representations “in a ny manner, dire ctly or by implication,” “in connec tion with

the ma nufact uring, label ling, advert isin g, promotion, offerin

g for sa le, sale , or distri

bution of a

ny a ir cleaningproduct

in or affecting commerce.”

The language of the Order is plain and

does not require further interpretation. Inaddition, any repr

esentations made to distributors or other salespe ople are obviously intend ed to be pass ed on to customers. Furthermore, A lpine is not entit led to a ne

w trial un less it
can show that its substantial right s wer e prejudiced. See McGowan v. Cooper

Indus. , 863 F.2d 1266, 1271 (6th Cir. 1988). Alpine mus t show that the exclus ion was no t only
erroneou s , but also resulted in a substantial injustice. See Sutkiewicz

v. Monroe

County She

riff , 110 F.3d 352, 357 (6th Cir 1997). Al

pin e has not demonstrated how the exclusion of this evidence produced a substantial injustice.

IV The Permanent Injunction

The permanent injunction is reviewa ble onl y for abuse

of discretion. See S. Cent. Power Co. v. I nt’l Bhd. of Elec. Work ers , 186 F.3d 733 , 7 37 (6th Cir . 1999). Alpine is enjoined from maki

ng any claims or repres entation s that its product can: [E]liminate, remove, clear, or clea n from ind

oor air any pollutant, contaminant, microo rganis m (includingNo. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 19

bacteri a, viruses, molds, and mildew), chemical or particulate, or any

specific quantity or a

mount of any of the foregoing. De fe nd an ts ma y, however, represent that their product can remove “visible” tobacco smoke a n d

some odors (witho ut sp ecifying wh at odo r), pro vidi ng, however, defendants may no t claim or r

eprese nt, expressly or implied

ly, th a t the removal of vis ible tobacco smoke or s ome odors necessa rily implicates the removal of any

chemica l, partic ulate, or microorganism. They shall make

no claim or repre sentations in any formor by an

y mea ns expressly or impliedly that Alpine’s products prevent or provide, or may

prevent or provide, relief f

rom any health or medical c o ndition of any kind. Alpine contends that

the scope of

injunctive relief afforded by t he pe rmanen t inj uncti on con flict s wit h the j ury’s fin dings and the gov ernment ’s c o ncession s and is sub sequentl y overinclusive. In particular, Alpine argues that the court should not have e

xcepted on

ly “visible” tobacco smoke since the jury made no such e xplicit distinction in their verdi c t. The judge’s reasoning for this lang uage is revealed in the memorandum at tached t o the prior modifie d Inte rim Injun ction, wh ich state s that:

The jury was aske d a s pecific question about “smoke”; they were not asked about the component parts of that smoke. The jury likely

interpreted

the questionli te ra ll y, viz, vis able smoke. Most lay people would def ine “smoke” as something that can be seen or sme lled.

The court’s rea sonin g is consistent with its and our own interpretation

of the jury’s ve

rdict , and d oes not reflect an abuse of discretion.
Next, Alpine con t ends that although the permanent injunction allows cl aims for general odors, it prohibits c laims for specific odors without any supporting rationale. Alpine points to a statement made by the governm ent’s l awyer 20 United Sta tes v. Alp ine Indus tries, et a l. No. 01-5759

during trial, wh

ich conc eded tha

t “odors a re not a p art of thi s case. They neve

r have been.” Alpinealso point s to the fact that experts agreed t

hat the product could be effective on
some odors, spe cific ones of w hich wer e identif ied. I n sum, Alpine maintains that ev en if its request for JNOV or a new trial i s not granted, the company should be allowed to make claims for the reduction of smoke, tobacco smoke, cigar ette smoke, all common

indoor ai

r partic ulate s, gen eral and specific odors, and other chemical gases. Alpine, howeve r, goes too far. While it is possible that Alpine’s products may be eff ective against some odors, none of the g overnment ’ s experts testified that t

here wa s compete

nt and re liable scient ific e vidence to support the claim that Alpine’s aircleaningdevices will reduce a ll common ind oor air particu lates, general and

specific odors, and “other” chemical gases. Furthermore, the district court’s injunction d oes not prevent Alpine from claimingthat it is a ble to remove “ some odors” and yet pre

v ents it from ma

king spe cific cl aims, which, f or example , could be

used in a m

isleading way to make indirect claims that Alpine’s devices also reduce t h e particulates associated with those odors. Since the district court did not abuse its discretion, we find no reason to amend the permanent injunction now in place.

V

Excessi ve Pena lty Alpine contends that the penalty assesse d was exce ssive in light of the fact that Alpine relied in good faith on experts and should not be “harshly punished.” However, the district court did not pick the penalty it assessed, $1.49 million dollars, out of thin air. The court consulted the rele vant statu te, 15 U.S. C. § 45(l), w hich prov ides that: Any person, partnership, or corporation who violates an order of the Comm

ission aft er it has b ecome f

in al, and while such order is in effect, shall forfeit and pay to theNo. 01-5759 United Sta tes v. Alp ine Indus tries, et a l. 21

United States a civil penalty of not more than $10,000 for each violation . . . .

T he sta tute additionally provides that “[I ]n the case of a violation through continuing failure to obey o r negle ct to obey a final order of the Commission, each da y o f continuance of such failure or neglect shall be deemed a separa te offense.” The district court, in considering the statute quoted above, noted that

if each of the exhi

bits shown to the jury were

to be “parsed for individua l misrepre sentation s, there would b e thousa nds upon thousands of violations.” The court, therefore, determined to take a
reasona ble course, calculated that Alpine’ s violations continued over a to tal of one

thousand f

our hundr ed ninety day s, took into account Alpine’s co nd uct, its financial
resourc es, and the ne ed to vindi cate the FTC’s au

thority in order to provide deterre nce, and decide d that a c ivil pena lty inthe amount of one thousand dollars per day over the period in question would be acceptable. Alpine contends that th e court did not give proper consider ati on to its good faith efforts to comply with the FTC’s re quireme

nts. Howe

ver, the court did so at leng

th

. VI

For the reasons given above, we AF FIRM the district
co ur t’ s j ud gm en t i n i ts en ti re ty.