There's an old saying about throwing a pass in a football game: There are three possible outcomes, and two of them are bad. Perhaps HCP should have had that adage in mind when it appealed a $101.7 million Louisville federal district court jury verdict for a rival real estate investment trust called Ventas.

HCP and its appellate counsel at MoloLamken argued on appeal that the jury's verdict was based on insufficient evidence. A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit disagreed in a ruling Tuesday. The panel upheld the jury verdict-and, to make things even worse for HCP, found that the trial judge erred when he ruled Ventas couldn't seek punitive damages. The Sixth Circuit sent the case back to Louisville federal district court for a new trial on punies.

The litigation stems from a 2006 fight between HCP and Ventas for the assets of a Canadian real estate trust called Sunrise Senior Living. After Ventas made a deal with Sunrise, HCP swept in with a competing offer, despite missing a deadline for bids. Courts in Ontario eventually ruled that HCP's offer was improper, but in the meantime, Kentucky-based Ventas had to raise its bid by $1.50 per unit. At trial, Ventas's lawyers at Jenner & Block claimed HCP made its offer in bad faith, simply to force Ventas to pay more. Jenner asked the hometown jury to make HCP pay the difference between Ventas's original offer and the sweetened offer prompted by the HCP bid. Jurors gave Ventas and Jenner everything they asked for. Judge John Heyburn II, however, granted HCP summary judgment on punitive damages.

HCP was represented at trial by Kellogg, Huber, Hanson, Todd, Evans & Figel but brought in Jeff Lamken of MoloLamken to argue before the Sixth Circuit. In essence, HCP asserted that the jury received improper instructions and had no basis for finding it liable to Ventas.

That's always a tough sell on appeal, and so it was here. The Sixth Circuit opinion, written by Judge Eric Clay for himself and Judge Allen Griffin, with Senior Judge Gilbert Merritt filing a separate concurrence, concludes the jury verdict was reasonable.

"In light of the totality of the evidence presented at trial, the jury arrived at a reasonable conclusion regarding the element of causation," the majority opinion says. "The jury had sufficient evidence to find that HCP's 'improper interference' caused injury to Ventas."

The appellate panel also rejected HCP's argument that the Canadian litigation precluded Ventas's U.S. suit.

Jenner & Block's David Bradford, who argued for Ventas at the Sixth Circuit, asked the appellate panel in a cross-appeal to reverse Judge Heyburn's grant of summary judgment to HCP on Ventas's request for punitive damages. The appellate panel did, finding there was enough evidence that HCP committed fraud to send the question of punitive damages to a jury. Bradford said Ventas hasn't yet decided how much of a punitives award to request.

HCP counsel Lamken of MoloLamken referred a request for comment to an HCP spokesperson who didn't respond to a phone message.

(Reporting by Alison Frankel)