Could it be that after 20 years, five trials and two trips to the Ohio Supreme Court, David Jelinek's lawsuit against Abbott Laboratories is finally over?

It's ironic that it's an age discrimination case, because this suit is a real geezer.

After getting hit with a $26 million jury verdict in 2002, Abbott brought in the big guns—Kirkland & Ellis litigation ace James Hurst, plus partner Christa Cottrell, who handled the latest appellate argument, partner Rebecca Fitzpatrick and associate Michael Maione. 

After a series of appeals, remands and new trials, the Kirkland team managed to un-do all of the damage.

Last week, Ohio's Tenth Appellate District confirmed an across-the-board win for Abbott, sending the plaintiff off empty-handed.

Jelinek's lawyer Russell Kelm, a solo practitioner in Columbus, Ohio, did not respond to a request for comment.

The trial (which I wrote about a few years ago) hinged on an unusual argument—that being transferred to Gary, Indiana was tantamount to discrimination.

Hey, I get it—I wouldn't want to move to Gary either. OK yes, I've never actually been to Gary, and I'm sure some of it is very nice, but it's got one of the highest crime rates in America, its poverty rate is 35.8%, its population has plummeted and it's plagued with blighted or abandoned properties.

On the plus side, you can visit Michael Jackson's childhood home. 

Jelinek had been working for Abbott subsidiary Ross Products Division in Columbus, Ohio for 30 years, rising to become a primary care district manager.

But then Abbott in 1997 announced it was cutting 225 jobs, including all the primary care district manager positions.

Abbott gave Jelinek a choice: He could take a severance package that included 11 months of salary, or he could take a new sales job in Gary for the same base pay as his existing job. 

Jelinek, understandably, was not enthused about moving to Gary—not just because it was Gary, but also because he claimed the sales territory he was offered had been "collapsed" from 12 counties down to two. As a result, he figured he'd take a hit on bonus pay. That in turn would hurt his pension payments when he did retire, since Abbott based the pension amount on the employee's earnings for the last three years of employment. 

He took the job in Gary, worked there for five days, and then quit. 

"It wasn't viable," his lawyer told a Franklin County, Ohio jury in 2017, according to a transcript of the proceedings. 

Other—younger—primary care district managers got new jobs with Abbott but didn't have to move. "So based on age, the younger you were, the better you were treated," Kelm told the jury. "The older you were, the worst position you got. That's age discrimination. That's just blatant age discrimination sitting there right in front of you." 

Not so fast, Hurst countered. For one thing, Jelinek was not replaced by a younger worker. His position was eliminated.  

The other managers who got new jobs and didn't have to move happened to be located in cities where there were vacancies—but they all got the same basic offer. And no one disputes there were no vacancies in Columbus.

"He wanted a Columbus job. We didn't have a Columbus job. That's really what the alleged discrimination is about. How come you couldn't get me a job in Columbus? That's what it comes down to," Hurst told the jury.

As for Jelinek's claim that the sales territory in Gary was untenable, Hurst presented evidence that the person who ultimately took the job earned decent bonuses and performed well.

The jury agreed, deliberating for just 90 minutes before siding with Abbott. 

On appeal, Jelinek complained that the trial court excluded "accurate" statistical evidence about Abbott's 1997 reduction in force, which he alleged was implemented in a discriminatory manner.

He complained he was denied additional discovery necessary for such an analysis, but as the appeals panel pointed out, Jelinek "does not identify any additional discovery that was denied or explain why the information the trial court ordered Abbott to produce was insufficient."

The trial court judge also ruled that the statistics Jelinek wanted to introduce did not pass muster under controlling precedent.

The appellate panel agreed. Jelinek's expert used a single variable analysis—termination of workers under age 40 versus over age 40—without considering things like whether some of the departing employees were terminated for poor performance or in favor of retaining older employees, or whether they may have accepted early retirement.

Also, when Jelinek's expert was deposed, he was asked if he could conclude the statistics he identified indicated Abbott discriminated against workers on the basis of age. He responded, "If I was asked can you assert that age was the cause of this, was a causal factor, I wouldn't be able to assert that.'

So yeah, that would make his testimony less than useful. 

Jelinek also complained that he wasn't allowed to introduce evidence about the crime rate, schools, closed hospitals and recreation (or lack thereof) in the Gary-area, show photos of Gary, or to question witnesses regarding the desirability of working in Gary. (Versus the apparent paradise that is Columbus, Ohio, I guess.)

Jelinek's lawyer snuck some Gary-bashing into his opening and closing anyway, when he talked about Gary's main hospital closing and called Gary "such an undesirable place." Jelinek on the stand called the city "a disaster" and said it would be "very difficult, very difficult" to live there.

"[T]he trier of fact was aware of appellant's subjective view of the Indiana territory," Judge Susan Brown writing for the unanimous Tenth District panel observed dryly. And in any event, "the desirability of working in Gary, Indiana [was] 'not relevant to the inquiry in this case.'"