Menninger v. PPD Development, L.P.Menninger v. PPD Development, L.P.
Before Aframe and Kayatta,* Circuit Judges.
Douglas Hallward-Driemeier, with whom John P. Bueker and Ropes & Gray LLP were on brief, for appellant.
Stephanie Schuster, Douglas W. Baruch, Jennifer M. Wollenberg, and Morgan, Lewis & Bockius LLP on brief for National Association of Manufacturers, amicus curiae.
Patrick J. Hannon, with whom Hartley Michon Robb Hannon LLP was on brief, for appellee.
*
Judge Selya heard oral argument in this case and participated in the initial semble thereafter. His death on February 22, 2025, ended his involvement in this case. The remaining two panelists issued this opinion pursuant to
KAYATTA, Circuit Judge. Dr. Lisa Menninger was the Executive Director for Laboratory Operations at a clinical laboratory division of PPD Development, L.P. (PPD). Menninger claims that PPD discriminated and retaliated against her because of her social anxiety disorder, in violation of the
I.
A.
Because PPD challenges the sufficiency of the evidence supporting the jury‘s verdict, we recount the events in the light most favorable to Menninger, “drawing all factual inferences and resolving all credibility determinations in her favor.” Dimanche v. Mass. Bay Transp. Auth., 893 F.3d 1, 4 n.2 (1st Cir. 2018); see also Franchina v. City of Providence, 881 F.3d 32, 38 (1st Cir. 2018) (“[O]ur recounting of the facts . . . defer[s] to the jury‘s discernible resolution of disputed factual issues.” (quotation marks and citation omitted)).
B.
PPD is a clinical research organization. It assists pharmaceutical companies in testing new drugs, researching vaccines, and organizing and analyzing data from clinical trials. One of its divisions, Global Central Labs, focuses on clinical laboratory testing. Menninger was its Executive Director for Laboratory Operations.
In 2017, its business stagnating, PPD‘s senior management decided to implement a plan focusing on client relationships. As part of that plan, PPD tasked its operational leads -- including Menninger -- with increasing their involvement in client pitches, bid defenses, and other engagements with clients.
When Menninger‘s supervisor, Hacene Mekerri, told her about the planned change in her duties, Menninger balked. She explained to Mekerri that public presentations in front of large crowds “ma[d]e
PPD proposed that Menninger have her doctor recommend accommodations that might allow Menninger to perform her new duties. After consulting with an attorney and her doctor, she agreed.
On January 31, 2018, Menninger‘s psychiatrist, Dr. Marianna Kessimian, submitted a written accommodation request on Menninger‘s behalf. The request noted that Menninger could “tolerate” public speaking and social interaction “to the extent that they [were] necessary for her job.” However, it cautioned that expanding Menninger‘s public-speaking and social-interaction responsibilities would “increase her anxiety and worsen her somatic symptoms,” making it “substantially more difficult, if not impossible, for [Menninger] to perform her job.” Kessimian suggested three possible accommodations: (1) minimizing social interaction or public speaking “to the extent possible“; (2) not changing Menninger‘s role to require more public speaking or social interactions; and (3) developing a “plan” for any necessary public speaking and social interactions, in consultation with Kessimian or another qualified healthcare provider, so as to “minimize [Menninger‘s] anxiety and somatic symptoms.”
In response, Human Resources (HR) Associate Director Chad St. John asked Menninger for additional information from her physician regarding the specific duties Mekerri had raised that Menninger could not perform. St. John also prompted Mekerri to send Menninger an email, on February 6, listing five broad categories of public-speaking and social tasks that Menninger would be expected to perform (specifying the frequency and number of attendees for some, but not all, of the tasks). Some of the listed activities were ones that Menninger performed “regularly without issue,” whereas others -- like being physically present for client site visits -- marked a sharp departure from her previous role.
Menninger worked with Kessimian to request a second set of accommodations specifically tailored to Mekerri‘s emailed list. Kessimian‘s additional suggestions included providing a “surrogate or reader” to attend client meetings or make presentations on Menninger‘s behalf. Kessimian also said that Menninger was “able to build business relationship[s] in a more ‘behind the scenes’ fashion and would like [to] brainstorm other potential avenues where she [could] add value” in the business-development context. Kessimian submitted the request on February 14, 2018.
St. John responded by email to Menninger twelve days later, stating that PPD could accommodate Menninger‘s requests for a surrogate to present at internal meetings, as well as her request to reduce travel expectations. However, he indicated that PPD could not make any accommodations with regard to “Client Bid Defense,” “Issue resolution calls,” “HH/Client site meetings,” “phone,” “Technical Sales presentation internal and external,” and “Lunch/dinner and social interactions” during customer visits.
During the meeting with St. John and Mekerri, Menninger sought more information about the specific responsibilities for which PPD stated that no accommodations were possible, because -- as she put it in a follow-up email -- she thought there were “many tasks that could fall within those items that would not implicate [her] disability.” However, PPD would not provide those details. Instead, PPD focused on “working [Menninger] out,” with St. John asking Menninger to either transition to “a temporary consulting role” or take an “exit package.”
Predictably, matters deteriorated from there. Menninger made clear that she did not want to leave PPD. St. John sent a memorandum to PPD‘s legal department seeking guidance in pursuing an “an exit strategy” with Menninger. St. John also sent the legal department a draft email stating that to provide Menninger with further information about her new public-facing responsibilities “would only present [Menninger] the opportunity to select” responsibilities that she “believe[d she could or could not] do.” Meanwhile, PPD stayed its course of refusing to provide further details about the public-facing responsibilities at issue.
In the months that followed, St. John coached Mekerri on “documenting criticisms [of Menninger] to his manager file,” and helped him draft an email to Menninger instructing her to modify her 2018 goals to include “[e]liminat[ing] Lab Issues, client complain[ts,] and audit findings” and “proactively eliminat[ing] quality issues.” Menninger viewed these criticisms of her performance as unfounded, and she saw the “goals” Mekerri had laid out as impossible standards that would set her up for failure. She complained of potential discrimination or retaliation, but the PPD representative who investigated her complaint -- Ballweg -- told Menninger that Ballweg had found no evidence of wrongdoing.
That spring, as tensions rose between Menninger and her employer, Menninger developed major depressive disorder -- what PPD‘s own medical expert would later classify as a “reactive depression” triggered by PPD‘s response to Menninger‘s accommodation requests. On June 2, 2018, Menninger informed PPD that she would need to take medical leave on her doctor‘s advice, effective immediately. After exhausting her available paid and unpaid leave, Menninger was still medically unable to return to work. In February 2019, PPD fired her.
Four months later, Menninger sued PPD for disability discrimination and retaliation under both state and federal law. She claimed that PPD failed to reasonably accommodate her; that it took adverse action against her because of her disability; and that it retaliated against her for disclosing her disability and seeking accommodation.
After discovery, the district court granted partial summary judgment for PPD on two points: It rejected Menninger‘s theory that PPD could be liable solely for failing to engage in an interactive process, and it limited Menninger‘s disparate-treatment claims to a single adverse action, Mekerri‘s February 6, 2018, email describing the five categories of public-facing responsibilities
Trial did not go well for PPD. As the district court recounted, “the relative strength of the parties’ positions appeared much different than it had on a written discovery record unilluminated by live witness testimony.” In particular, explained the district court, “Menninger‘s credible and detailed
testimony was measured against accounts by PPD representatives that were often vague, suffered from troubling inconsistencies, or tended to corroborate Menninger‘s position rather than undermine it.” At the end of the ten-day trial, the jury found in Menninger‘s favor in all respects. It concluded that PPD unlawfully failed to provide a reasonable accommodation, unlawfully discriminated against her under Massachusetts and federal law, and unlawfully retaliated against her under federal and state law. It awarded Menninger more than $24,000,000 in damages, comprised of $1,565,000 in back pay, $5,465,000 in front pay, $5,000,000 in past emotional distress, $2,000,000 in future emotional distress, and $10,000,000 in punitive damages.
With a new set of lawyers, PPD moved for judgment as a matter of law, a new trial, and remittitur. The district court denied those motions, and this appeal followed.
II.
Menninger‘s claims -- and the resulting jury verdict -- arise under the ADA, as well as analogous provisions of Massachusetts state law. The ADA “provide[s] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
A.
The
denies the
PPD‘s entire
THE COURT: Are there any motions you want to make? You don‘t have to, but I‘m just giving you the chance.
MR. CURRAN: Yeah. A motion for directed verdict, Your Honor.3
THE COURT: All right. Fine. I will deny that. So anything else? We‘re just going to get Mr. Kelly?
MR. CURRAN: Yes, Dr. Kelly.
The foregoing exchange was not necessarily PPD‘s last chance to put forward, under
Only after the jury verdict did PPD explain (in a
Seeking to escape this self-imposed bind, PPD casts blame on the district court, which -- it claims -- prevented PPD from articulating the grounds for its initial motion by
“immediately and summarily” denying the motion. The situation, PPD contends, is “precisely the same” as that in Blockel v. J.C. Penney Co., 337 F.3d 17 (1st Cir. 2003). The relevant exchange in Blockel was as follows:
COUNSEL: Your Honor . . . we did want to proceed with our motions for directed verdicts on certain issues.
THE COURT: I never noticed that you filed one at the close of plaintiff‘s evidence. I said at the time that I believed after the evidence was complete.
COUNSEL: I believe that we --
THE COURT: Motion for directed verdict has been filed, and it‘s on the record, and the Court denies it.
Id. at 25 n.2 (emphases added). “Under [those] circumstances,” we found that the trial court “foreclosed” the party from explaining the basis of its motion, and we elected not to “fault[ the party] for failing to provide more detail.” Id. at 25.
Here, the circumstances materially differ. The district court actually invited PPD to make a
“no . . . further argument was forthcoming.” PPD does not even now explain how that finding was erroneous.
As PPD correctly points out, where “so much rides on a procedural rule, parties
PPD alternatively contends that even if it failed to comply with
Prior to 2006, we acknowledged the possibility of a departure from this general rule in “an exceptional case,” to prevent “a miscarriage of justice.” Correa, 69 F.3d at 1196 (citations omitted). In Chestnut v. City of Lowell, 305 F.3d 18 (1st Cir. 2002), we provided an example of such an exceptional
case, where (1) the nonmoving party shared responsibility for its opponent‘s failure to raise the relevant defense; and (2) the error came at the expense of “innocent taxpayers of the City,” the “very ones” for whose benefit the defense was adopted. Id. at 20.
More recently, and in the wake of the Supreme Court‘s decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006), several other courts of appeals have found that federal courts have no authority to consider sufficiency-of-the-evidence arguments not timely advanced in
This court has yet to determine Unitherm‘s implications for cases like Chestnut. See Chestnut, 305 F.3d 18. Nor need we do so now. Even if we had the authority to entertain, in exceptional cases, sufficiency challenges not preserved in accordance with
motion. The case itself was reasonably complicated, and it is not patently clear how the plaintiff would have responded had PPD timely spelled out the holes that it now contends exist in Menninger‘s evidence. For all these reasons, we decline to consider on the merits PPD‘s unpreserved sufficiency-of-the-evidence arguments.
B.
PPD next claims that an improper jury instruction tainted the verdict, warranting a new trial. Specifically, PPD takes issue with the court‘s instruction that a reasonable accommodation “might include,” among other things, “the provision of qualified readers or interpreters.” PPD acknowledges that the quoted language comes directly from the ADA‘s definition of reasonable accommodation. See
We need not assay the full merits of this argument, because, once again, PPD failed to preserve its objection.
Here, PPD did raise a concern with a proposed “reader” instruction during the charge conference, arguing that the statutory reference to “readers” does not “refer to the type of reader that Dr. Menninger was requesting,” but rather to “having someone read to” the disabled employee. But when the district court pointed out that the listed accommodations were merely examples and not per se reasonable in any given case, the following exchange ensued:
THE COURT: . . . I could add, potentially, a sentence at the end [saying that] whether or not something is a reasonable accommodation depends upon, you know, a determination considering all the relevant facts and circumstances.
[PPD‘S COUNSEL]: That might be helpful, Your Honor.
THE COURT: Do you object to that?
[MENNINGER‘S COUNSEL]: I don‘t.
[PPD‘S COUNSEL]: Would it be okay to add “interpreter,” just to give it some context?
THE COURT: Sure. I‘ll add it if you want.
[PPD‘S COUNSEL]: Thanks.
Following that conversation, PPD raised no further objections to the “reader” instruction, nor did it indicate in any way that it continued to take issue with the instruction as modified by the court and supplemented by PPD‘s suggestion.
Where a district court “add[s] instructional language to address” a party‘s concern with a jury instruction, and the party does “not object after being apprised of the court‘s proposed modification or after hearing the modified instruction given to the jury,” the party forfeits its objection to the instruction. Booker, 612 F.3d at 42. Such is the case here. By failing to object to the modified instruction, PPD deprived the district court of the opportunity to cure the alleged defect. See Flynn, 377
F.3d at 25.5 Indeed, as the
Because PPD forfeited its argument as to the jury instruction, we review the “reader” instruction for plain error only. In reviewing for plain error, we “resuscitate a forfeited argument only if the appellant demonstrates that (1) an error occurred (2) which was clear or obvious and which not only (3) affected the appellant‘s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings.” Davila v. Corporacion de P.R. para la Difusion Publica, 498 F.3d 9, 14-15 (1st Cir. 2007) (cleaned up).
We see no “clear or obvious” error in the lower court‘s accurate quotation of the ADA‘s statutory text, see
It is by no means clear, however, that jurors would have construed the court‘s reference to a “reader” as including a person who would perform Menninger‘s essential job functions. Our precedent instructs us to evaluate a jury instruction “in the context of the instruction as a whole.” Richards v. Relentless, Inc., 341 F.3d 35, 48 (1st Cir. 2003). Here, the court‘s list of examples was immediately followed by its qualifying statement that “[a]n accommodation is not reasonable if it requires eliminating or excusing an inability to perform any essential functions of the job, if it requires shifting any of the essential functions . . . to other employees, if it requires creating a new position for the disabled employee, or if it creates an undue hardship.” Nor does the hiring of a reader, however construed, appear to have played any significant role in closing arguments. Menninger‘s counsel mentioned it once, immediately followed by the statement that the case was not “really about” that accommodation request. Instead, Menninger‘s counsel primarily argued that PPD refused to exchange information or seek, in good faith, a way for Menninger to
C.
As its final sally, PPD seeks to overturn the ten-million-dollar punitive-damages award. First, it contends that the award was “almost certainly the direct result of the erroneous ‘reader’ instruction.” For the reasons discussed above, we discern no plain error in the district court‘s “reader” instruction, and thus PPD cannot prevail on that basis.
Second, PPD argues that as a matter of law, Menninger failed to show PPD‘s “malice” or “reckless indifference.” The district court found that PPD preserved this particular claim of error, and Menninger does not challenge that conclusion. We therefore proceed to the merits of PPD‘s argument that the evidence could not have supported the state-of-mind elements of Menninger‘s punitive-damages claim.6 We review de novo a preserved challenge to the sufficiency of the evidence underlying a punitive-damages award, viewing the evidence “in the light most hospitable to the jury‘s verdict.” Mendez-Matos v. Municipality of Guaynabo, 557 F.3d 36, 40, 48 (1st Cir. 2009) (citation omitted).
Punitive damages are sometimes either unavailable, see, e.g., Barnes v. Gorman, 536 U.S. 181, 189 (2002) (holding that punitive damages are not available in private suits brought under Title VI of the Civil Rights Act), or are subject to heightened burdens of persuasion, see, e.g., Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 n.11 (1991) (observing that many states require “clear and convincing evidence” to justify a punitive- damages award). But the federal law under which Menninger has sued expressly authorizes the recovery of punitive damages, and it imposes no heightened burden of proof.
1.
The district court rejected PPD‘s post-verdict challenge to the punitive-damages award because “the evidence . . . permitt[ed] a reasonable jury to conclude PPD acted with malice or reckless indifference to Menninger‘s rights in the
After carefully reviewing the record, we agree with the district court that a reasonable jury could have viewed the evidence in a manner supporting the punitive-damages award.
We note at the outset that we see no evidence of malice in PPD‘s decision to increase Menninger‘s public-facing responsibilities before ever learning of her disability, nor in its initial response to her first request for accommodation on January 11, 2018. Instead, the trouble began when Menninger submitted a second request for accommodations on February 14. On February 28, St. John sent an email to Ballweg in which he referenced “delicately working [Menninger] out,” stated that Mekerri was meeting with Menninger that day, and noted that PPD had “[given] only slightly on two out of five items that [Menninger‘s] physician requested.” That same day, Mekerri and St. John met with Menninger and, according to Menninger‘s testimony, gave her only two options: take an immediate exit package, or transition into a temporary consulting role before exiting.
An employer does not necessarily act with malice when it illegally attempts to terminate an employee. As the Supreme Court has explained, “[t]here will be circumstances where intentional discrimination does not give rise to punitive damages liability . . . [because the employer] discriminates with the distinct belief that its discrimination is lawful.” Kolstad v. Am. Dental Ass‘n, 527 U.S. 526, 536-37 (1999). Thus, in Tobin, we rejected a proposed punitive-damages instruction where the employer had at most “misjudged the reasonableness of the accommodations requested,” and there was no evidence of the employer‘s “intentional or reckless indifference to [the plaintiff‘s] federal rights” beyond its failure to accommodate him and “general insensitivity to his circumstances.” 553 F.3d at 149. Similarly, if PPD believed that it had no legal duty to further accommodate Menninger‘s disability — for example, because her disability prevented her from completing her job‘s essential functions — its failure to accommodate her further would not have been malicious.
But the jury had reason to doubt whether PPD so believed. At trial, Ballweg testified that it would have been “inappropriate” for PPD to seek an exit strategy for Menninger at the time of the February meeting and emails, because “[t]he interactive dialogue, discussions with Dr. Menninger, had not resolved.” She further testified that if Mekerri had sought, in the February 2018 meeting, “to work Dr. Menninger out of the organization,” that would have been “unfair treatment” of Menninger, the kind that Ballweg was tasked with investigating later that spring. She testified that St. John had not informed her of his efforts to seek an exit strategy for Menninger (despite an email from St. John
PPD‘s subsequent behavior provided further support for Menninger‘s claim that, rather than believing it could lawfully discharge Menninger because of her disability, PPD instead sought to fabricate other grounds to terminate her or else pressure her to quit. The jury saw evidence that in April 2018, Mekerri‘s supervisor emailed Ballweg‘s supervisor to ask about the “timing on Lisa Menninger‘s exit.” The email was forwarded to Ballweg, who responded that termination was “not close” unless Menninger “self-select[ed]” (i.e., quit), because Menninger got a “3 rating for 2017” and PPD was “just now starting to document” her supposed performance issues. The jury also heard testimony from St. John suggesting that he had been “coaching” Mekerri to document performance issues for Menninger. It heard testimony from Ballweg and St. John that St. John helped Mekerri draft new performance goals for Menninger, saw a document indicating that those goals included “Elimination of Lab Issues,” and heard testimony that “elimination of all lab errors” was “an impossible goal,” supporting Menninger‘s theory that she was being set up to fail. Taken together, this evidence could have permitted the jury to infer that — far from believing it could legally fire Menninger because her social anxiety prevented her from doing her job — PPD sought to conceal its unlawful motivations by manufacturing performance-based grounds for terminating Menninger, or creating conditions so unpleasant that she would “self-select” (that is, quit).
Finally, in weighing this evidence, the jury could have also considered PPD‘s response to Menninger‘s discrimination complaint in the spring of 2018. When Menninger made an internal complaint that she was facing unfair criticism at work because she had disclosed her disability and requested accommodations, Ballweg was the PPD employee who investigated the complaint. Ballweg testified that it would be “inappropriate” for an internal investigation of a discrimination complaint to be conducted by someone who was “involved directly in” the events complained of. But emails in evidence and Ballweg‘s own testimony indicated that Ballweg was deeply involved in PPD‘s efforts to “work[ Menninger] out.” The evidence supported an inference that Ballweg oversaw the efforts to reduce Menninger‘s performance rating and document criticisms of Menninger‘s work, updated higher-ups on the progress of “Menninger‘s exit” and the efforts to create a record of poor performance, and helped draft communications from Mekerri assigning Menninger new, allegedly impossible goals and identifying supposed performance issues. Thus, the jury could have concluded not only that Ballweg was an inappropriate person to investigate Menninger‘s complaint, but also that by conducting the investigation herself, Ballweg
We emphasize that the jury was by no means required to draw these inferences. A reasonable jury could have believed that Menninger could not do the job as newly envisioned without accommodations that were unreasonable. The jury could have elected not to credit Ballweg‘s assessment that it would have been “inappropriate” to seek an “exit strategy” for Menninger in February 2018; it could have found, instead, that PPD believed in good faith that it could lawfully “work[ Menninger] out” because her condition prevented her from doing her job. And it could have credited Ballweg‘s testimony that she conducted a fair and impartial investigation of Menninger‘s complaint. But on appeal, we are bound to draw our factual inferences “in the light most hospitable to the jury‘s verdict.” Casillas-Diaz v. Palau, 463 F.3d 77, 79 (1st Cir. 2006); see also Soto-Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015) (“A rational jury could draw either inference, regardless of which may be the stronger of the two. But we may not supplant the jury‘s role by weighing the strength of those competing inferences for ourselves.“).
In sum, the jury could reasonably have found that PPD, fearing demands by Menninger that it make unwanted accommodations, began a campaign to manufacture termination grounds or pressure Menninger to quit and then sought to cover up those efforts, thus demonstrating its knowledge “of a perceived risk that its actions would violate federal law.” Tobin, 553 F.3d at 148 (cleaned up); cf. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000) (holding that punitive damages were available against an employer where the jury could reasonably “have found that defense witnesses lied (both to [the plaintiff] and at trial) about their actions, as part of a continuing effort to cover up their campaign against her“); Brown v. Advanced Concept Innovations, LLC, No. 21-11963, 2022 WL 15176870, at *5 (11th Cir. Oct. 27, 2022) (per curiam) (holding that an ADA punitive-damages award was supported by evidence that, among other things, the employer “created documentation falsely suggesting that [the plaintiff] had voluntarily resigned, rather than been terminated for not being able to perform the duties of the position“). On the record before us, these determinations were not beyond the jury‘s ken. See United States v. Mehanna, 735 F.3d 32, 47 (1st Cir. 2013) (“It is the jury‘s role -- not that of the Court of Appeals -- to choose between conflicting hypotheses, especially when such choices depend on the drawing of inferences and elusive concepts such as motive and intent.“).
2.
PPD last claims that because the district court rejected Menninger‘s theory that her employer failed to engage in an interactive process, Menninger cannot show malice or reckless indifference. PPD is correct that the district court granted partial summary judgment on Menninger‘s no-interactive-process theory. But the court simultaneously refused to grant PPD summary judgment on some of Menninger‘s disparate-treatment and retaliation theories and on the issue of pretext, in a manner difficult to reconcile with PPD‘s view that the district court issued a blanket finding of good faith. Specifically, the district court found triable issues of fact as to whether PPD decided to make Menninger‘s job “more difficult” in February 2018 because of her disability; sought to coerce her to quit in retaliation for disclosing her disability and requesting accommodations; excluded her from hiring and recruitment responsibilities in retaliation for disclosing
In this context, we read the district court‘s summary-judgment ruling as simply rejecting a standalone claim that PPD violated state (and possibly federal) law by failing to engage in any interactive process whatsoever. This legal conclusion -- resting on the district court‘s finding that PPD did not “completely disregard[]” Menninger‘s request for accommodations -- is a far cry from the factual finding that PPD wishes to attribute to the district court, i.e., that PPD engaged in “good faith” in all its dealings with Menninger. Indeed, the district court itself offered a different understanding of its summary-judgment holding: In its response to PPD‘s posttrial motions, the court found that the evidence permitted a finding of malice or reckless indifference, and it stated that “[t]o the extent [the district court had] granted summary judgment on any discrete legal theory or claim, its instructions to the jury carefully described the law in a manner entirely consistent with those rulings, and PPD has not suggested . . . otherwise” (emphases in original). We are thus loath to reach beyond the plain language of the district court‘s summary-judgment ruling to infer an implicit finding of good faith.
We therefore decline to strike the jury‘s punitive-damages award.
III.
For the foregoing reasons, we affirm on all counts the district court‘s final judgment and its order denying PPD‘s posttrial motions.