United States of America v. ALPINE INDUSTRIES, INC. and WILLIAM J. CONVERSE

*This decision was originally issued as an “unpublished decision”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.
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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

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No. 01-5759 United States v. Alpine Industries, et al. 3
1Styrene, Benzene, Dust Mites, Bacteria, Allergens, Formaldehyde,
Dust, Pollens, M old S pores, Chemical Gases, Pa rticulates, M ildew,
Legio nella, Dry C leaning Chem icals, Skin Flakes, Dust Mite Feces,
Yeast, Fungi, Gases, Chemical Fumes, Mold, Germs, Cleaning Product
Fumes, Dead Skin, M icrob iological Growth, Skin, H air, Chemicals,
Dried-up Rat Urine, Microbiological Organisms, Dried-up Mouse Urine,
Streptoco ccus, Staphylococcus, Aspergillus Fungus, Salmonella,
Cockroach Eggs, Cat Dandruff, Asbestos, Rat Urine, Legionella, Solid
Particulate, Microorganisms, Microbials, Volatile Organic Chem icals,
Organic Ga ses, Cat Dander, Viruses, Dry Cleaning Fluids, Pieces of
Insects, Micro bes, Dirt, Da nder, E-co li, Gas Contaminants, Car Fumes,
Candida Yeast, Disinfectant Fumes, Cockroach Pieces, Animal Dander,
Traffic Fum es, Smog, Cockro ach Feces, Pencillium, and Tub erculosis.
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.
. . .

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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, which when 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

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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

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No. 01-5759 United States v. Alpine Industries, et al. 9
2For example, government expert R ichard Sextro noted in his
testimony that “we used environmental tobacco smoke, partly beca use it
was representative of typical indoor particles, . . . if one looks at size
dependent remova l characteristics of any of the filters, those
characteristics will be the same whether . . . it’s a one micro meter particle
that’s environmental tobacco smoke or whether it’s a one micro meter 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 co ncern. . . . [I]t generates uniform dispersion
and it is often used by investigators in the field to track the performance
of air cleaning d evices.”
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
3Dr. 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 we re left alive, which is not co nsidered to be
effective b y 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

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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.

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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

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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?

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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

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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 air-
cleaning 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

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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.

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