*

This decision was originally issued as an “unpublished decision”

filed on September 26, 2003. On December 4, 2003, the court designated

the opinion as one recommended for full-text publication.

**The Honorable Nancy G. Edmunds, United States District Judge for

the Eastern District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0449P (6th Cir.)

File Name: 03a0449p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALPINE INDUSTRIES, INC. and

WILLIAM J. CONVERSE,

Defendants-Appellants.

X

-

-

-

-

>

,

-

-

-

-

N

No. 01-5759

Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 97-00509—Dennis H. Inman, Magistrate Judge.

Argued: December 4, 2002

Decided and Filed: September 26, 2003*

Before: BOGGS, Chief Judge; GUY, Circuit Judge; and

EDMUNDS, District Judge.**

2 United States v. Alpine Industries, et al. No. 01-5759

_________________

COUNSEL

ARGUED: J. Ronnie Greer, Greeneville, Tennessee, for

Appellants. Peter R. Maier, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. ON BRIEF: J. Ronnie Greer, Greeneville,

Tennessee, William A. Erhart, Gregory B. Davis, ERHART

& ASSOCIATES, Anoka, Minnesota, for Appellants. Peter

R. Maier, Douglas N. Letter, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee.

_________________

OPINION

_________________

BOGGS, Chief Judge. Alpine Industries, Inc. and William

J. Converse, Alpine’s President and Chief Executive Officer,

(collectively referred to as Alpine) appeal a judgment against

the company in an enforcement action brought by the

government for violating a Federal Trade Commission

Consent Order (the Consent Order). The Consent Order

forbade the company, an organization engaged in marketing

and distributing air-cleaning devices, from making product

claims without the support of competent and reliable

scientific evidence. The case was bifurcated into a liability

phase, which was tried in front of a jury in the fall of 1999,

and a remedy phase, which was tried by the court in January

2001. In November 1999, the jury found that Alpine had

violated the Consent Order. In particular, the jury found that

Alpine had advertised that its air cleaning products removed

over 60 separately titled but in many cases overlapping
No. 01-5759 United States v. Alpine Industries, et al. 3

1

Styrene, Benzene, Dust Mites, Bacteria, Allergens, Formaldehyde,

Dust, Pollens, Mold Spores, Chemical Gases, Particulates, Mildew,

Legionella, Dry Cleaning Chemicals, Skin Flakes, Dust Mite Feces,

Yeast, Fungi, Gases, Chemical Fumes, Mold, Germs, Cleaning Product

Fumes, Dead Skin, Microbiological Growth, Skin, Hair, Chemicals,

Dried-up Rat Urine, Microbiological Organisms, Dried-up Mouse Urine,

Streptococcus, Staphylococcus, Aspergillus Fungus, Salmonella,

Cockroach Eggs, Cat Dandruff, Asbestos, Rat Urine, Legionella, Solid

Particulate, Microorganisms, Microbials, Volatile Organic Chemicals,

Organic Gases, Cat Dander, Viruses, Dry Cleaning Fluids, Pieces of

Insects, Microbes, Dirt, Dander, E-coli, Gas Contaminants, Car Fumes,

Candida Yeast, Disinfectant Fumes, Cockroach Pieces, Animal Dander,

Traffic Fumes, Smog, Cockroach Feces, Pencillium, and Tuberculosis.

categories of indoor air pollutants,1 controlled ambient ozone

levels, and produced various health benefits, without

competent and reliable scientific evidence to support these

claims. However, the jury also found that Alpine’s product

claims regarding the ability of its air cleaning products to

remove smoke, tobacco smoke, and cigarette smoke, were

supported by competent and reliable scientific evidence. The

district court’s final judgment against Alpine was entered in

April 2001 and included, in addition to injunctive relief, an

award of $1,490,000 in civil penalties. 

Following the district court’s final judgment, Alpine filed

motions to amend the district court’s judgment, for JNOV, or

for a new trial. The district court denied these motions.

Alpine appeals the district court’s denials of its motions to

amend the judgment and for JNOV, arguing that the

government did not present sufficient evidence to support the

jury’s findings. Alpine also appeals the district court’s denial

of its motion for a new trial, arguing that the jury’s verdict is

internally inconsistent and that the special verdict form was

worded in such a way as to place the burden of proof

improperly on Alpine instead of the government. Alpine

additionally argues that it was entitled to seek judicial

reformation of the underlying Consent Order on the grounds

of mutual mistake and that it was prejudiced by the district

court’s exclusion of parol evidence surrounding the Consent

4 United States v. Alpine Industries, et al. No. 01-5759

Order. Finally, Alpine argues that the injunctive relief

embodied in the Permanent Injunction issued by the district

court, intended to prevent further representations by Alpine

regarding the efficacy of its air-cleaning machines without

competent and reliable scientific evidence, does not

accurately reflect the jury’s verdict and that furthermore, the

penalty imposed by the district court against 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 Alpine in promoting, advertising, and selling

its air-cleaning machines. The investigation concluded when

Alpine agreed to an FTC Consent Order, effective October 2,

1995, which reads in relevant part:

For the purposes of this Order, the following definitions

shall apply:

A. The term “air cleaning product” shall mean any

product, equipment, or appliance designed or advertised

to remove, treat, or reduce the level of any pollutant(s) in

the air. 

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

shall mean one or more of the following: formaldehyde,

sulfur dioxide, ammonia, trichlorethylene, benzene,

chloroform, carbon tetrachloride, odors, nitrogen dioxide,

mold, mildew, bacteria, dust, cigarette smoke, pollen,

and hydrocarbons, or any other gaseous or particulate

matter found in indoor air. 

. . .
No. 01-5759 United States v. Alpine Industries, et al. 5

I

IT IS ORDERED that [Alpine] in connection with the

manufacturing, labelling, advertising, promotion,

offering for sale, sale, or distribution of any air cleaning

product . . . do forthwith cease and desist from

representing, in any manner, directly or by implication,

A. such product’s ability to eliminate, remove, clear, or

clean any indoor air pollutant from a user’s environment;

or 

B. such product’s ability to eliminate, remove, clear, or

clean any quantity of indoor air pollutants from a user’s

environment;

II

IT IS FURTHER ORDERED that [Alpine] in connection

with the manufacturing, belling, advertising, promotion,

offering for sale, sale, or distribution of any air cleaning

product . . . do forthwith cease and desist from

representing, in any manner, directly or by implication,

that:

A. The use of ozone is more effective in cleaning or

purifying indoor air than other air cleaning methods;

B. The product does not create harmful by-products; or

C. When used as directed, the product prevents or

provides relief from any medical or health-related

condition;

unless at the time of making such representation,

respondents possess and rely upon competent and

reliable scientific evidence that substantiates the

representation. 

6 United States v. Alpine Industries, et al. No. 01-5759

III

IT IS FURTHER ORDERED that [Alpine] in connection

with the manufacturing, labelling, advertising,

promotion, offering for sale, sale, or distribution of any

air cleaning product . . . do forthwith cease and desist

from representing, in any manner, directly or by

implication, the efficacy, performance, or health-related

benefit of any such product, unless, at the time of making

such representation, respondents possess and rely upon

competent and reliable evidence,whichwhen appropriate

must be competent and reliable scientific evidence, that

substantiates the representation.

. . . . 

On December 30, 1997, the government initiated an action

alleging violations of the Consent Order, requesting

injunctive relief, consumer redress, and civil penalties against

Alpine. Alpine requested a jury trial, which the district court

granted with respect to the issue of liability for civil penalties.

On November 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 cigarette smoke, Alpine’s claims were not

supported by competent and reliable scientific evidence.

II

Directed Verdict / JNOV

Alpine moved for a directed verdict at the conclusion of the

government’s case in chief and again at the close of evidence,

and later moved for a judgment notwithstanding the verdict.

We review the district court’s denial of Alpine’s motions for

judgment as a matter of law (motions for a directed 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, 1078

(6th Cir. 1999) (citing K & T Enters. v. Zurich Ins. Co., 97

F.3d 171, 175 (6th Cir. 1996) and Wehr v. Ryan’s Family
No. 01-5759 United States v. Alpine Industries, et al. 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 (6th Cir.

1993). In order to prevail, Alpine must demonstrate that “no

reasonable juror could have found for the nonmoving party.”

Moore, 171 F.3d at 1078. In applying this standard, we

cannot weigh 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 give the government

the benefit of all reasonable inferences. Ibid. 

Alpine contends that the burden was on the government to

establish a prima facie case and that the government did not

meet this initial burden, so that Alpine is entitled to a

judgment as a matter of law, notwithstanding the jury’s

verdict. The government conceded in a pretrial hearing that

it had the burden of proving at trial 1) that Alpine had made

claims or representations that fell within the terms of the

Consent Order, and 2) that Alpine did not possess and rely

upon competent and reliable scientific evidence at the time

such claims or representations were made. Alpine takes issue

with the second requirement in this appeal. Alpine contends

that the government did not present sufficient proof that

Alpine did not possess and rely upon competent and reliable

scientific evidence at the time it made representations

regarding all of the indoor air pollutants listed on the jury

form (with the exception of smoke, cigarette smoke, and

tobacco smoke), and regarding the health benefits bestowed

on users by the product. Alpine does not dispute the

sufficiency of the evidence presented by the government

regarding the product’s ability to maintain indoor ozone

concentrations at a particular level.

Alpine, however, misconstrues the level of proof necessary

to establish a prima facie case under these circumstances.

During the hearing that led to the order establishing the

shifting burden of proof in this case, some explanation was

offered as to how the government would fulfill this

8 United States v. Alpine Industries, et al. No. 01-5759

requirement, recognizing that the government was being

asked to prove a negative. The government’s lawyer stated

that she understood the government’s burden as being met if

expert testimony were offered for the proposition that such

experts were unaware of scientific data supporting Alpine’s

claims (or, if testimony has been offered in support of Alpine,

which explained that the information produced by Alpine

pursuant to the Consent Order in support of their claims was

insufficient or incompetent). The court stated that it “was

inclined to agree” with the government lawyer’s assessment

and that upon receipt of such testimony, Alpine would be

expected to rebut the government’s proffer and the jury would

determine whether or not Alpine had done so effectively.

Given that the Consent Order puts the onus on Alpine to

make available on request all information relied upon by

Alpine in making representations regarding the efficacy of its

air-cleaning devices, we agree that the government’s burden

for making a prima facie case is satisfied if evidence was

offered at trial that the information provided pursuant to the

Consent Order was either insufficient or incompetant. The

government certainly need not have proven that there was no

competent or reliable basis upon which Alpine might have

rested its claim. If the experts knew of none and information

received from Alpine was insufficient to provide such a basis

or was deemed unreliable, it was up to Alpine to provide

further information that would convince the jury. 

During the two-week long trial, the government produced

experts in the fields of air pollution, ozone chemistry, and the

efficacy of air cleaners, all of whom testified that they were

unaware of any competent and reliable evidence to support

various claims made by Alpine. These experts also discussed

tests they had participated in, which further discredited

Alpine’s claims. Moreover, the FTC officer assigned to

Alpine’s case testified that the evidence submitted by Alpine

to the FTC in support of its claims regarding the efficacy of

its air-cleaning machines was evaluated by experts and

deemed to be insufficient. In response, Alpine provided its

own experts, who described in their testimony the various
No. 01-5759 United States v. Alpine Industries, et al. 9

2

For example, government expert Richard Sextro noted in his

testimony that “we used environmental tobacco smoke, partly because it

was representative of typical indoor particles, . . . if one looks at size

dependent removal characteristics of any of the filters, those

characteristics will be the same whether . . . it’s a one micrometer particle

that’s environmental tobacco smoke or whether it’s a one micrometer dust

particle.” Government expert Richard Shaughnessy stated: “Tobacco

smoke is, as I said, it is perfect dispersion, you know, looking at particles,

to be looking at particle reduction within a space. It provides you [sic] the

range of particles that are of concern. . . . [I]t generates uniform dispersion

and it is often used by investigators in the field to track the performance

of air cleaning devices.”

tests they had done on the air-cleaning machines, and the

evidence they had relied on in support of the claims made by

Alpine. 

In particular, 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 regarding any

of the other particulates 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 allergen claims. However, the government

experts explained in their testimony that the results of these

tests can be applied to other particulates, such as those at

issue in this case, since they are in the same size range as

those found in tobacco smoke.2 As it turns out, Alpine does

not dispute this fact, but instead argues that because the

results garnered from the tests on tobacco smoke can be

extrapolated to all other particulates within the same size

range, including microbes, and because the jury found that

Alpine’s claims regarding the efficacy of its air-cleaning

devices with respect to tobacco smoke were supported by

reliable and competent scientific evidence, it is not possible

for the evidence to support the jury’s findings against Alpine

on the other particulates and microbes in that size range.

Although we will address this argument, it is not properly

raised here, as it goes not to the sufficiency of the evidence

10 United States v. Alpine Industries, et al. No. 01-5759

3

Dr. Cole explained that within this “area of biocide efficacy or

effectiveness, the standard that’s been set for decades has been efficacy

or effectiveness based upon achieving a three log reduction.” In sum,

although the tests did show that some organisms were killed, more than

one in one thousand were left alive, which is not considered to be

effective by the industry.

presented by the government in their prima facie case, but

rather to the consistency of the jury’s verdict. 

Next, Alpine argues that the government did not address

Alpine’s claims that its devices introduce ozone into the air,

which kills microbes through ionization. However,

government expert Eugene C. Cole testifed to the fact that

tests published by the American Industrial Hygiene

Association demonstrated that exposure of a large variety of

organisms, including microbes and fungi, to concentrations of

gas-phase ozone at the same or at higher concentrations than

those claimed to be maintained by the Alpine air-cleaning

products, had an impact on some organisms but were not

ultimately effective at removing any of them according to

industry standards.

3

 Furthermore, Cole testified that in his

expert opinion he was unaware of reliable scientific evidence

to support the claims made by Alpine with respect to the

impact of ozone on microbes and fungi. This testimony is

sufficient evidence to support the jury’s findings of liability.

Alpine further contends that because none of the

government experts were medical doctors, toxicologists, or

health officials, they were not qualified to opine on whether

its air-cleaning machines provide medical and health-related

benefits and their testimony cannot, therefore, be considered

sufficient evidence to support the jury’s finding of liability on

this question. This argument is unpersuasive. Alpine’s

experts and the government’s experts did not disagree on

which indoor pollutants cause health problems, the issue in

dispute between them was whether Alpine’s air-cleaning

products were capable of removing the pollutants that cause

health problems. Thus, the expertise needed under these
No. 01-5759 United States v. Alpine Industries, et al. 11

circumstances was not that of a medical doctor, toxicologist,

or health official, but rather an expert on the removal of

indoor air pollutants. The jury simply determined that the

government’s experts were 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.

Finally, Alpine contends that the government offered no

proof that Alpine did not rely on competent and reliable

evidence for its claims with respect to its product’s ability to

remove certain chemical gases from indoor air: specifically

styrene, isoprene, d-limonene, and alpha-pinene. And

moreover, that Dr. Weschler’s testimony for the government

supported Alpine’s claims that hydrogen sulfide, 4-

ethenylcyclohaxene, 4-phenylcyclohaxene, double-bonded

volatile organic chemicals, odiferous chemicals, acrolein,

body odor, indole, scatole, garlic odor, and thyocyanite could

be reduced through the use of ozone. 

Dr. Weschler did in fact testify to the fact that even a

relatively small concentration of ozone tends to break down

styrene, hydrogen sulfide, 4-ethenylcyclohaxene, and 4-

phenylcyclohaxene, which suggests that Alpine might prevail

with respect to these compounds at least. Yet, if one views

the evidence in a light most favorable to the government and

gives the government the benefit of all reasonable inferences

as we must, one finds that there was other evidence presented

through Dr. Weschler’s testimony and Dr. Cole’s expert

report on gas-phase ozone that can explain the jury’s findings

on these chemical pollutants. It is Alpine’s contention that all

of these pollutants are broken down and thus “removed” from

the environment by Alpine’s air-cleaning devices through

their reaction with ozone. However, there are two problems

with this theory. First, this process requires a certain

concentration of ozone, and the evidence presented in Dr.

Cole’s report and through other expert testimony is that

Alpine has not provided reliable test results that demonstrate

the ability of its machines to maintain that level of ozone

concentration. In fact, Alpine does not contest on appeal the

12 United States v. Alpine Industries, et al. No. 01-5759

jury’s separate finding that Alpine’s claim that “[t]he sensor

in [its] air cleaning products maintains indoor ozone

concentrations at .05 parts per million or less” is not

supported by competent and reliable scientific evidence. It is

not unreasonable to assume that if the machine’s ability to

maintain a concentration of ozone is unsubstantiated, then its

ability to remove certain pollutants by way of a reaction with

ozone is also unsubstantiated. 

Second, we return to Dr. Weschler’s testimony. Although

Dr. Weschler did say that concentrations of ozone will

generally react with compounds containing double bonds,

such as the ones mentioned above, he particularly noted that

“it’s an important thing to remember when we speak about

ozone reacting with compounds in the air because often you

might initially have one pollutant, and you’ll result [sic] in

two pollutants.” In other words, rather than “cleaning” the

air, as suggested in Alpine’s literature, the ozone introduced

by Alpine’s air-cleaning devices may change a given

molecule into two new compounds, which may be more

concerning than what existed previously. As an example of

this phenomenon, Dr. Weschler described an experiment he

had conducted in which ozone had in fact lowered the amount

of styrene, 4-ethenylcyclohaxene, and 4-phenylcyclohaxene

in a controlled environment, but had nevertheless increased

the level of formaldehyde and acetaldehyde in the air. Given

this information, it is not unreasonable for a juror to

determine that a claim by Alpine that a user’s environment

will be cleaned of a pollutant by its air-cleaning product is

unsupported by competent and reliable scientific evidence,

when in fact the pollutant may be broken down into other,

even more noxious, pollutants. Thus, viewed in a light most

favorable to the government, there was sufficient evidence

presented at trial with respect to the jury’s findings.
No. 01-5759 United States v. Alpine Industries, et al. 13

III

Motion for a New Trial

A district court’s decision to deny a new trial on the basis

of the weight of the evidence shall be reversed only upon

finding an abuse of discretion. See Bruner v. Dunaway, 684

F.2d 422, 425 (6th Cir. 1982). Alpine contends that the jury

verdict was inconsistent and irreconcilable, that the district

court allowed for an improper shifting of the burden of proof

in the jury’s special verdict form and through a comment

made to the jury, and that the district court improperly

excluded evidence relating to the negotiation history of the

Consent Order, consumer satisfaction surveys, and marketing

information that Alpine believed would have allowed the jury

to perceive Alpine’s marketing promotions in context.

A. Inconsistent Verdict?

As we noted in section II, the government’s experts in

addressing the viability of Alpine’s claims regarding

particulates focused on testing the ability of various devices

in removing particles found in tobacco smoke, which the

experts testified to be representative of the particles at issue

in this case and therefore a good surrogate for testing the

efficacy of a device in removing these other particles. Alpine

accepts this premise, but argues on appeal that if the

government’s experts are right, the jury’s verdict must be

considered inconsistent and irreconcilable, since the jury

found Alpine’s claims regarding the ability of its air-cleaning

devices to remove smoke was supported by competent and

reliable scientific evidence, but that none of its other claims

made with respect to other particulates were supported by

such evidence. In sum, Alpine argues that if the results of

smoke testing could be extrapolated to all other indoor air

particulate at issue, then it would appear that the jury, because

it found for Alpine on smoke, had no basis for a finding

against Alpine on all the other particulates listed on the jury

verdict form. This logic would also extend to the question of

14 United States v. Alpine Industries, et al. No. 01-5759

microbes and allergens in particulate form and within the

relevant size range.

In Gallick v. Baltimore and O.R. Co., 372 U.S. 108, 119

(1963), the Supreme Court stated in relevant part:

[I]t is the duty of the courts to attempt to harmonize the

answers, if it is possible under a fair reading of them . . . .

We therefore must attempt to reconcile the jury’s

findings, by exegesis if necessary, before we are free to

disregard the jury’s special verdict and remand the case

for a new trial.

The Sixth Circuit has also held that “[w]hen requested, a trial

court faced with an apparent inconsistency between a jury’s

answers and the court’s instructions must attempt to reconcile

the two.” Holloway v. McIntyre, 1988 WL 7961, Nos. 86-

1001, 86-1898 at *3 (6th Cir. Feb. 4, 1988) (citing Waggoner

v. Mosti, 792 F.2d 595, 597 (6th Cir. 1986)). 

The district court reconciled the apparent inconsistency in

the jury’s verdict by determining that the jury had in fact been

referring to “visible smoke” rather than the particulates in

smoke, and we are persuaded that this is a reasonable

conclusion. Alpine’s reasoning assumes that the jury’s

favorable determination on the smoke removal claims

reflected an implicit determination that Alpine’s air purifiers

effectively removed the particulate elements of smoke, when

in fact smoke contains much more than particulate matter. In

fact, Dr. Weschler noted in his testimony at trial that in

addition to the particulates present in tobacco smoke, there

are “thousands of chemicals.”

Furthermore, the jury was presented at trial with evidence

concerning the removal of “visible smoke.” Alpine had a

videotape demonstration, which showed its air-cleaning

machines removing visible smoke from a small transparent

chamber. The jury also heard from the government’s expert,

Dr. Sextro, who stated in doing his tests on particulates in
No. 01-5759 United States v. Alpine Industries, et al. 15

smoke: “[W]e didn’t test [the effectiveness of the filter

against smoke] gases. We didn’t look at – I mean, I don’t

know if there was any absorption by the HEPA filter of any

of the environmental smoke gases or not; that wasn’t the

purpose of our study.” Based on this information, the jury

could have concluded that Alpine had adequate substantiation

to claim that its devices removed “visible smoke,” which

would be entirely consistent with the rest of the jury’s

determinations with regard to particulate claims. 

B. Burden of Proof

Alpine contends that the district court improperly shifted

the burden of proof during the course of the trial. Alpine

maintains that the jury’s special verdict form is improperly

worded, with the second part of each question reflecting a

burden on Alpine to provide scientific evidence of the various

contaminants that it could remove. That part of the question

states “was the claim [made by Alpine with regard to a

particular contaminant] supported by competent and reliable

scientific evidence at the time the claim was made?” Alpine

had requested instead that a different text be used: “Has

Plaintiff proved that the Defendants did not possess and rely

upon competent and reliable scientific evidence for claims

that their air purifiers eliminate, remove, clear or clean [a

particular contaminant]? Yes_____ No_____”

Alpine also points to a statement made by the district judge

near the end of trial in which he addressed the jury and stated

in relevant part:

[Y]ou recall that your area of inquiry will be if Alpine

and Mr. Converse made certain representations as

described in the Consent Order, and you will be given a

copy of the Consent Order. . . . That will be the first

thing for you to decide, did Alpine after the date of that

Consent Order make representations as, as described in

the Consent Order, Question No. 1. Question No. 2, if

they did, with regard to any particular representation, did

16 United States v. Alpine Industries, et al. No. 01-5759

Alpine and or Mr. Converse, as the case may be, have in

their possession at that time and rely upon at that time on

competent and reliable scientific evidence. Let that be

burned into the back of your mind because that is the

area of inquiry; that’s what you will be called upon

ultimately to decide. 

Alpine argues that the verdict form was ultimately

prejudicial and that as a result, Alpine did not receive a fair

trial.

The district court responded to Alpine’s claims, noting that:

The jury was instructed, on more than one occasion, that

the government had the burden of proving 1) that the

defendants made a particular representation, 2) which

was not supported by competent and reliable scientific

evidence. The wording on the verdict form could not

reasonably be read as contradicting the Court’s explicit

instructions regarding the burden of proof.

A special verdict form will only provide grounds for reversal

if it is confusing, misleading, or prejudicial when viewed as

a whole. See Hostetler v. Consolidated Rail Corp., 123 F.3d

387, 393 (6th Cir. 1997). In this case, the form should be

viewed along with the jury instructions, which clearly stated

where the burden of proof lay:

The verdict form asks you a set of two questions as to

each alleged claim: First, has the government proven by

a preponderance of the evidence that Alpine 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, did the government prove by a

preponderance of the evidence that the defendants at the

time such claim was made did not possess and rely upon

competent and reliable scientific evidence to substantiate

it, that claim or representation?
No. 01-5759 United States v. Alpine Industries, et al. 17

These jury instructions reflect the proper placement of the

burden of proof, which starts with the government and moves

to Alpine, once the government offers enough evidence to

make its prima facie case. 

C. Parol Evidence

Alpine objects to the district court’s use of the parol

evidence rule to exclude evidence of the negotiations with the

FTC that led to the execution of the Consent Order, which

ultimately prevented Alpine from explaining that it

understood the Order to cover only assertions made by Alpine

with regard to reducing the level of a contaminant by a

specific percentage and not general statements made with

regard to reducing the level of contaminants. The district

court, however, properly concluded that the Consent Order

unambiguously covered claims that Alpine’s devices

eliminated portions of contaminants whether or not such

claims were expressed as a numerical percentage.

D. Exclusion of Consumer Reports and Marketing

Information

Alpine also appeals the district court’s decision to exclude

testimony concerning consumer satisfaction surveys and

marketing information. Alpine argues that the district court

abused its discretion in precluding the testimony that Alpine

wished to include relating to the context in which the various

representations 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 government to show

promotional brochures, videotapes, audio tapes, and training

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

Alpine argued that the context in which these materials were

disseminated was an important factor to be considered when

determining whether the representations were directed to

consumers or instead to dealers. The government argues that

whether the statement was made to a consumer or to a dealer

is immaterial for purposes of the Consent Order, which only

18 United States v. Alpine Industries, et al. No. 01-5759

refers to “representations” and does not specify to whom

those representations will be made. Alpine argues that the

Consent Order must be interpreted in light of its principal

purpose, which was to prevent unsubstantiated claims about

the efficacy of Alpine’s air purifiers from being made to

consumers. 

The Consent Order is unambiguous on this point, stating

repeatedly that Alpine was not to make the relevant

representations “in any manner, directly or by implication,”

“in connection with the manufacturing, labelling, advertising,

promotion, offering for sale, sale, or distribution of any air

cleaning product in or affecting commerce.” The language of

the Order is plain and does not require further interpretation.

In addition, any representations made to distributors or other

salespeople are obviously intended to be passed on to

customers. 

Furthermore, Alpine is not entitled to a new trial unless it

can show that its substantial rights were prejudiced. See

McGowan v. Cooper Indus., 863 F.2d 1266, 1271 (6th Cir.

1988). Alpine must show that the exclusion was not only

erroneous, but also resulted in a substantial injustice. See

Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 357 (6th

Cir 1997). Alpine has not demonstrated how the exclusion

of this evidence produced a substantial injustice. 

IV

The Permanent Injunction

The permanent injunction is reviewable only for abuse of

discretion. See S. Cent. Power Co. v. Int’l Bhd. of Elec.

Workers, 186 F.3d 733, 737 (6th Cir. 1999). Alpine is

enjoined from making any claims or representations that its

product can:

[E]liminate, remove, clear, or clean from indoor air any

pollutant, contaminant, microorganism (including
No. 01-5759 United States v. Alpine Industries, et al. 19

bacteria, viruses, molds, and mildew), chemical or

particulate, or any specific quantity or amount of any of

the foregoing. Defendants may, however, represent that

their product can remove “visible” tobacco smoke and

some odors (without specifying what odor), providing,

however, defendants may not claim or represent,

expressly or impliedly, that the removal of visible

tobacco smoke or some odors necessarily implicates the

removal of any chemical, particulate, or microorganism.

They shall make no claim or representations in any

form or by any means expressly or impliedly that

Alpine’s products prevent or provide, or may prevent or

provide, relief from any health or medical condition of

any kind.

Alpine contends that the scope of injunctive relief afforded by

the permanent injunction conflicts with the jury’s findings

and the government’s concessions and is subsequently

overinclusive. In particular, Alpine argues that the court

should not have excepted only “visible” tobacco smoke since

the jury made no such explicit distinction in their verdict.

The judge’s reasoning for this language is revealed in the

memorandum attached to the prior modified Interim

Injunction, which states that:

The jury was asked a specific question about “smoke”;

they were not asked about the component parts of that

smoke. The jury likely interpreted the question literally,

viz, visable smoke. Most lay people would define

“smoke” as something that can be seen or smelled.

The court’s reasoning is consistent with its and our own

interpretation of the jury’s verdict, and does not reflect an

abuse of discretion. 

Next, Alpine contends that although the permanent

injunction allows claims for general odors, it prohibits claims

for specific odors without any supporting rationale. Alpine

points to a statement made by the government’s lawyer

20 United States v. Alpine Industries, et al. No. 01-5759

during trial, which conceded that “odors are not a part of this

case. They never have been.” Alpine also points to the fact

that experts agreed that the product could be effective on

some odors, specific ones of which were identified. In sum,

Alpine maintains that even if its request for JNOV or a new

trial is not granted, the company should be allowed to make

claims for the reduction of smoke, tobacco smoke, cigarette

smoke, all common indoor air particulates, general and

specific odors, and other chemical gases. Alpine, however,

goes too far. While it is possible that Alpine’s products may

be effective against some odors, none of the government’s

experts testified that there was competent and reliable

scientific evidence to support the claim that Alpine’s aircleaning devices will reduce all common indoor air

particulates, general and specific odors, and “other” chemical

gases. Furthermore, the district court’s injunction does not

prevent Alpine from claiming that it is able to remove “some

odors” and yet prevents it from making specific claims,

which, for example, could be used in a misleading way to

make indirect claims that Alpine’s devices also reduce the

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

Excessive Penalty

Alpine contends that the penalty assessed was excessive 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 relevant statute, 15 U.S.C.

§ 45(l), which provides that:

Any person, partnership, or corporation who violates an

order of the Commission after it has become final, and

while such order is in effect, shall forfeit and pay to the
No. 01-5759 United States v. Alpine Industries, et al. 21

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

each violation . . . . 

The statute additionally provides that “[I]n the case of a

violation through continuing failure to obey or neglect to

obey a final order of the Commission, each day of

continuance of such failure or neglect shall be deemed a

separate offense.” The district court, in considering the

statute quoted above, noted that if each of the exhibits shown

to the jury were to be “parsed for individual

misrepresentations, there would be thousands upon thousands

of violations.” The court, therefore, determined to take a

reasonable course, calculated that Alpine’s violations

continued over a total of one thousand four hundred ninety

days, took into account Alpine’s conduct, its financial

resources, and the need to vindicate the FTC’s authority in

order to provide deterrence, and decided that a civil penalty

in the amount of one thousand dollars per day over the period

in question would be acceptable. 

Alpine contends that the court did not give proper

consideration to its good faith efforts to comply with the

FTC’s requirements. However, the court did so at length. 

VI

 For the reasons given above, we AFFIRM the district

court’s judgment in its entirety.