Following the Sixth Circuit's ruling upholding a $101 million jury verdict last month in Ventas Inc. v. HCP, Inc. (6th Cir. Case Nos. 09-6385/6413) (PDF), a petition for rehearing and rehearing en banc has been filed.  In its petition for rehearing (PDF), defendant-appellant HCP, Inc. ("HCP") raises three issues -- one for panel rehearing and two for en banc review.

First, HCP requests that the panel reconsider its determination that a declaratory judgment issued by a Canadian court prior to the filing of the lawsuit by Ventas, Inc. ("Ventas") in the United States cannot be given preclusive effect under Kentucky law.  HCP claims that a such determination not only clashes with a previous unpublished opinion of the Sixth Circuit (Holbrook v. Shelter Ins. Co., 186 F. App'x 618 (6th Cir. 2006) (PDF)), but also does not jibe with Kentucky courts' rulings on the subject.  HCP suggests that if the Court has doubt regarding this aspect of Kentucky law, it should certify the issue to the Kentucky Supreme Court.

Second, HCP requests en banc review of the panel decision to apply the Kentucky state law standard for reviewing sufficiency of the evidence.  HCP acknowledges that the panel correctly applied circuit precedent, but it observes that the Sixth Circuit's other sister circuits apply a federal sufficiency standard and also that the Ventas panel expressed the belief that those circuits "have the better view."  HCP urges the en banc Court to reverse circuit precedent on this issue, claiming that application of the federal standard of review would have resulted in a different conclusion by the lower court.

Finally, HCP argues that en banc review is also required on the panel's decision to enter final partial judgment as to the compensatory damages award and then to remand the punitive damages issue for trial.  According to HCP, compensatory and punitive damages may not be treated as separate claims, and, therefore, splitting punitive damages off for trial before a different jury would violate the Seventh Amendment and conflict with determinations by other circuits.  HCP suggests that the Court rule that Ventas can either retry the entire matter -- including liability, compensatory damages and punitive damages -- or accept its compensatory damages award and forego any award for punitive damages.

The Sixth Circuit Appellate Blog will keep an eye open for the Court's decision on the petition.