A Cook County judge has denied summary judgment to Fresenius Kabi USA, LLC and cleared the way for a jury trial in Chicago on our client's Illinois Whistleblower Act and common law retaliatory discharge claims, including a claim for punitive damages. Our client worked at the company's Melrose Park, Illinois plant.   A copy of the order is available here.

N THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION

[REDACTED],
PLAINTIFF,
v.
FRESENIUS KABI USA, LLC, and
JAMES AKSTULEWICZ, an Individual,
DEFENDANTS.

CASE NO. 2024 L 002032

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Plaintiff, [REDACTED] motion for partial summary judgment on Defendants, Fresenius Kabi USA LLC (“Fresenius Kabi”) and James Akstulewicz (“Akstulewicz”) (collectively, “Defendants”), First through Fourth Affirmative Defenses, as well as Defendants’ motion for summary judgment on Counts I and II of [REDACTED] complaint, Akstulewicz’ separate motion for summary judgment on Counts I and II, and Defendants’ motion for summary judgment as to punitive damages. For the reasons below, the Court largely grants [REDACTED] motion for summary judgment on the Affirmative Defenses (with a caveat), denies Defendants’ motion for summary judgment, and grants Akstulewicz’s motion as to Count II only.

INTRODUCTION

[REDACTED] worked in pharmaceutical validation, the function that confirms manufacturing systems are safe before they produce sterile injectable drugs. Fresenius Kabi employed her as a Senior Validation Manager at its Melrose Park facility from June 2022 until October 2, 2023, when it fired her. [REDACTED] claims that Fresenius Kabi and Akstulewicz, its Senior Director of Engineering Services, retaliated against her because she refused to approve what she viewed as regulatory shortcuts and because she reported Akstulewicz to Human Resources. Defendants tell a different story. They say Fresenius Kabi fired [REDACTED] because she lied to HR about whether her manager supported terminating a subordinate. Count I alleges retaliation under the Illinois Whistleblower Act, 740 ILCS 174/1 et seq. Count II alleges common law retaliatory discharge against Fresenius only.

BACKGROUND

Fresenius Kabi manufactures generic injectable drugs, including oncology and critical care medicines, at its Melrose Park facility. [REDACTED] oversaw validation functions there. She reported to Brenda Schuler, the Director of Equipment Validation, who in turn reported to Akstulewicz. [REDACTED] supervised several validation engineers, including Patrice Jepsen.

The record describes a facility under pressure. Melrose Park carried a backlog of open quality Events while Fresenius Kabi worked to clear an FDA Official Action Indicated classification and to open Building B, a $250 million expansion. [REDACTED] testified that Akstulewicz repeatedly pressed her to close Events without corrective action, to approve validation work she considered deficient, and to sign a change control releasing a Water for Injection port that had tested positive for contamination. She refused. A former engineer, Ben Schmidt, avers that Akstulewicz discouraged the opening of Events and pressured him to justify releasing product that did not meet FDA requirements. Defendants dispute [REDACTED] characterization of each episode. For purposes of these motions, the Court recounts the record as presented, drawing reasonable inferences in favor of the party opposing each motion.

On June 28, 2023, [REDACTED] reported Akstulewicz to HR, alleging that he was pressuring her to violate FDA regulations. HR assigned Marilu Crespo to investigate. The investigation closed in August 2023 with a finding that [REDACTED] allegations lacked merit. Crespo later testified that the outcome was predetermined, that [REDACTED] “did not have a chance from the beginning,” and that it was “the worst investigation I’ve done.” Crespo also testified that Schmidt corroborated [REDACTED] account and that HR Director Toni Gutierrez told her to discount that corroboration. Defendants stand by the investigation.

Two later events frame the termination. First, on August 21, 2023, [REDACTED] told Schuler that if the pressure continued she would escalate to corporate HR and, if necessary, call the corporate Compliance Hotline. Second, on August 24, 2023, [REDACTED] exchanged Teams messages with HR Specialist Juana Arreguin about Jepsen, a subordinate on a 60-day performance improvement plan whom [REDACTED] wanted to terminate at the 30 day mark. Arreguin asked, “Does Brenda support this separation?” [REDACTED] later replied, “Brenda is on board as well.” When HR asked Schuler, Schuler said she had given [REDACTED] neither a confirmation nor a denial and had directed her to speak with HR. HR then opened what the parties call the Integrity Investigation. Schuler lodged a formal complaint about [REDACTED] on September 8, 2023, after Akstulewicz told her she needed to do so. Gutierrez conducted the investigation and concluded that [REDACTED] had misrepresented Schuler’s position.

The path from investigation to termination is contested. Gutierrez recommended a final written warning. She wrote that Schuler and Akstulewicz “would like to move forward with termination while I am leaning more towards a final written warning.” Deb Browne, the Vice President of Human Resources, approved termination. Fresenius Kabi fired [REDACTED] on October 2, 2023, without any prior discipline. Akstulewicz testified that he played no role in the decision. Other evidence, discussed below, permits a different reading. Discovery also produced affidavits from two employees, Shwet Kadakia and Raj Patel, swearing that the Integrity Investigation report attributed statements to them that they never made, and deposition testimony from Alex Bricker denying statements the report attributed to him.

After her termination, [REDACTED] searched for work. Her affidavit and discovery responses describe more than sixty applications or submissions over roughly sixteen months, targeting positions from Senior Validation Engineer through Director, at companies including [REDACTED], Abbott, Baxter, Novartis, and Eli Lilly. She declined no offers. In early 2025 she accepted a position at [REDACTED] as Manager of Validation Quality Systems at a salary [REDACTED] bonus. At Fresenius Kabi she had earned [REDACTED] a 14% bonus. Defendants combed her job search log and identified twenty seven intervals of five or more consecutive days without a recorded activity, totaling 274 days out of 465.

[REDACTED] filed this action in 2024. Defendants answered and pleaded four affirmative defenses. The First alleges that [REDACTED] failed to mitigate her damages. The Second asserts that she cannot recover punitive damages. The Third asserts a valid nondiscriminatory, nonretaliatory reason for the termination. The Fourth asserts that [REDACTED] lacked a good-faith basis to believe she engaged in protected activity. Discovery is complete, and the parties filed the cross motions now before the Court.

ANALYSIS

1. Standard of Law

Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c); Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). The purpose of the procedure is not to try a question of fact but to determine whether one exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Where reasonable persons could draw divergent inferences from undisputed facts, or where a material fact is disputed, the Court must deny the motion and let the trier of fact decide. Espinoza v. Elgin, Joliet & E. Ry. Co., 165 Ill. 2d 107, 114 (1995).

A defendant moving for summary judgment may prevail in either of two ways. It may affirmatively disprove the plaintiff’s case, or it may show that the plaintiff lacks evidence to prove an essential element. Colburn v. Mario Tricoci Hair Salons & Day Spas, Inc., 2012 IL App (2d) 110624, ¶ 33. The same logic governs a plaintiff who moves for summary judgment on an affirmative defense. The defendant must prove its affirmative defenses at trial, so the plaintiff may obtain judgment on a defense by showing that the defendant lacks evidence on one of its essential elements. Because the parties have filed cross motions aimed at different targets, the Court evaluates each motion on its own record and construes that record against the movant.

2. Defendants Are Not Entitled to Summary Judgment on Counts I and II

A retaliatory discharge plaintiff must prove that (1) the employer discharged her, (2) the discharge was in retaliation for her activities, and (3) the discharge violates a clear mandate of public policy. Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31. A claim under section 20 of the Whistleblower Act likewise turns on whether the employer retaliated against the employee because of protected activity. 740 ILCS 174/20; Sardiga v. Northern Tr. Co., 409 Ill. App. 3d 56, 61 (1st Dist. 2011). Both counts rise or fall here on causation, meaning the employer’s true motive. If an employer “comes forward with a valid, nonpretextual reason for an employee’s discharge and the trier of fact believes it, there can be no causation.” Michael, 2014 IL 117376, ¶ 39. Defendants assume for purposes of their motion that [REDACTED] June 2023 complaint was protected activity, and they have articulated a reason for the discharge: dishonesty. The question is whether a reasonable jury would have to accept that reason as the true, nonpretextual explanation. On this record, no.

Start with Defendants’ strongest evidence, because it is genuinely strong. The Teams message is authentic. [REDACTED] admits she sent it. Arreguin asked whether Schuler supported the separation, and [REDACTED] answered that Brenda was “on board as well.” Schuler has consistently denied supporting early termination. At her deposition, [REDACTED] conceded that Schuler never told her she favored terminating Jepsen. Defendants add that [REDACTED] discovery responses concede the point outright. An employer may discharge an employee it honestly believes lied about a personnel matter, and its investigation need not be exhaustive or correct, only reasonable and honestly concluded. Irick v. Illinois Hum. Rights Comm’n, 311 Ill. App. 3d 929 (1st Dist. 2000). If this evidence stood alone, Defendants would likely prevail.

It does not stand alone. [REDACTED] explains the message, and Schuler’s own testimony partially corroborates it. [REDACTED] testified that she asked Schuler whether Schuler was on board with [REDACTED] recommending termination to HR, and that Schuler agreed she could raise the question with HR while doubting HR would approve. Schuler acknowledged telling [REDACTED] to check with HR about whether early termination was an option. A jury could read the message as Defendants do, as a false claim of managerial approval. A jury could instead read it as a loose but honest description of an ambiguous conversation. Which reading is correct, and whether HR’s contrary conclusion was honestly held or merely convenient, are questions of credibility and inference. Those questions belong to the trier of fact.

The pretext evidence reaches well beyond the message itself. Viewed in [REDACTED] favor, the record would permit a jury to find each of the following. Crespo, who investigated [REDACTED] complaint about Akstulewicz, testified that the outcome was decided before the investigation began and called it the worst investigation she had done. Kadakia and Patel swore that the Integrity Investigation report attributed statements to them that they never made. Bricker denied telling anyone that [REDACTED] wanted Jepsen to fail, contrary to the report. Gutierrez, who ran the Integrity Investigation, recommended a final written warning rather than termination, and Browne overrode that recommendation after Schuler and Akstulewicz pushed for discharge. Akstulewicz told Gutierrez on September 26, 2023 that executive Mike Newson was pressuring him to act on subpar performers, naming [REDACTED] and Schmidt. Newson denied applying any such pressure. And the sequence is tight. Akstulewicz learned in early August that [REDACTED] had reported him. [REDACTED] threatened to call the Compliance Hotline on August 21. Schuler filed her complaint on September 8 after Akstulewicz said she needed to. Fresenius Kabi fired [REDACTED] on October 2.

Illinois law treats a record like this one as a matter for the jury. Evidence that an investigation misrepresented or fabricated witness accounts supports an inference of pretext. See Hubert v. Board of Education of the City of Chicago, 2020 IL App (1st) 190790, ¶¶ 24-28; Harden v. Marion County Sheriff’s Department, 799 F.3d 857, 864 (7th Cir. 2015). So does a departure from the employer’s ordinary disciplinary practice, and so do shifting explanations. Gomez v. The Finishing Co., 369 Ill. App. 3d 711, 719-21 (1st Dist. 2006). Defendants respond that their policy permits immediate termination for dishonesty without progressive steps, and Gutierrez so testified. That testimony is evidence a jury may credit. It does not erase the competing evidence that HR’s own investigator favored a warning and that the push for termination came from the very supervisor [REDACTED] had reported.

The First District confronted a similar posture in Hubert, where the employer claimed misconduct and the employee claimed retaliation for exposing fraud. The court reversed summary judgment for the employer: “We are presented with a classic case of both sides presenting evidence to support their positions and advancing a narrative that could be true. In such a case, summary judgment is not appropriate.” Hubert, 2020 IL App (1st) 190790, ¶ 24. The same is true here.

Michael does not point the other way. Defendants read it as affirming summary judgment for an employer despite temporal proximity. It did no such thing. Michael reached the supreme court after a bench trial at which the circuit court, sitting as the trier of fact, found the employer’s reasons valid and nonpretextual. 2014 IL 117376, ¶¶ 1, 39. The decision confirms that causation turns on what the trier of fact believes. It does not license this Court to make that credibility call on a paper record. Nor does the two month gap between the closure of the Compliance Investigation and the termination compel judgment. A temporal gap can weaken an inference of retaliation. Flick v. Southern Illinois Healthcare, NFP, 2014 IL App (5th) 130319. But [REDACTED] does not rest on timing alone, and the events closest to her discharge include her hotline threat and the investigation that followed it.

Defendants also try to shrink [REDACTED] protected activity to a single HR complaint. Her verified discovery responses and testimony describe a broader course of conduct, including her refusal to close Event 1406696 without corrective action and her refusal to release the contaminated Water for Injection port. Which episodes qualify as protected activity, and under which sections of the Whistleblower Act, will be resolved through the jury instructions. For now, it is enough that material facts about motive remain genuinely disputed.

The Court denies Defendants’ motion for summary judgment on Counts I and II.

3. The Punitive Damages Question Belongs to the Jury

Punitive damages are available in retaliatory discharge cases when the discharge is committed with fraud, actual malice, deliberate violence or oppression, or with willfulness or gross negligence showing a wanton disregard for the rights of others. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978). Proof of the tort alone is not enough. An award of punitive damages is never a necessary consequence of a retaliatory discharge. Dixon Distrib. Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 444 (1994). Defendants are right about that much. But the question at this stage is narrower: whether the record, viewed in [REDACTED] favor, contains evidence from which a reasonable jury could find the aggravated conduct that punitive damages require.

It does. The same evidence that creates a jury question on pretext also supplies the aggravation. A jury that credits [REDACTED] evidence could find that Defendants did not simply reach a mistaken conclusion in good faith. It could find that they steered an investigation to a predetermined end, attributed fabricated statements to coworkers, invented executive pressure, and branded a compliant employee dishonest to remove her. Evidence of a sham investigation designed to discredit an employee can sustain a punitive damages claim. Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 483 (7th Cir. 2003); Brandon v. Anesthesia & Pain Mgmt. Associates, Ltd., 277 F.3d 936, 945-47 (7th Cir. 2002). Illinois courts have submitted punitive damages to juries in retaliation cases tied to regulatory compliance. Gomez, 369 Ill. App. 3d at 721-23; Kaytor v. Southern Illinois Hosp. Services, 2025 IL App (5th) 240416, ¶¶ 138, 147-48.

Defendants answer that they possessed a documented, independent basis for the termination, unlike the employers in Gomez, Howard, and Kaytor. The answer assumes the disputed point. Whether the dishonesty rationale was genuine or manufactured is precisely what the jury must decide. If the jury accepts Defendants’ account, punitive damages will fail along with liability. If it accepts [REDACTED], the aggravating factors Illinois courts weigh, including deceit and disregard for the safety of others, are present. See Blount v. Stroud, 395 Ill. App. 3d 8, 20 (1st Dist. 2009).

The Court denies Defendants’ motion for partial summary judgment on punitive damages.

4. Akstulewicz Remains a Defendant on Count I

Count II first. [REDACTED] pleads her common law retaliatory discharge claim against Fresenius Kabi only, and she agrees that Akstulewicz faces no individual liability on it. Even if the Complaint could be read otherwise, judgment is entered for Akstulewicz on Count II.

Count I is different. The Whistleblower Act defines “employer” to include “any person acting within the scope of his or her authority, express or implied, on behalf of those entities in dealing with its employees.” 740 ILCS 174/5. The Second District recently held that this definition reaches individuals who act on the employer’s behalf in dealing with its employees, and it contrasted the Act with common law retaliatory discharge, which only the employing entity can commit. Sciarrone v. Village of Island Lake, 2025 IL App (2d) 240153, ¶¶ 46-49. Federal courts applying the Act have largely read it the same way. See Bello v. Village of Skokie, 151 F. Supp. 3d 849 (N.D. Ill. 2015). Akstulewicz cites no authority holding that only the formal decision maker can be individually liable, and the statute contains no such limitation.

Even if his role in the termination controlled, that role is genuinely disputed. Gutierrez wrote that Schuler and Akstulewicz wanted to move forward with termination while she leaned toward a final written warning. Akstulewicz admitted that he helped push the Jepsen issue and drive it to a resolution, that he told Schuler she needed to take the matter to HR, and that he participated in the September 11 meeting where discipline and termination logistics were discussed. He also relayed the claimed pressure from Newson that Newson denies applying. A jury could find that Akstulewicz, acting within the scope of his authority as a Senior Director, dealt with [REDACTED] on Fresenius Kabi’s behalf and drove her discharge.

The Court denies Akstulewicz’s motion for summary judgment as to Count I and grants judgment for Akstulewicz on Count II.

5. Defendants Cannot Sustain Their Failure to Mitigate Defense

Now to [REDACTED] motion. Failure to mitigate is an affirmative defense that the defendant must plead and prove. To prevail, an employer must prove two things: that the employee was not reasonably diligent in seeking other employment, and that with reasonable diligence there was a reasonable chance the employee could have found comparable employment. Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1234 (7th Cir. 1986); United States EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir. 1990). Illinois courts apply the same rule. In Raintree Health Care Center v. Human Rights Comm’n, 275 Ill. App. 3d 387, 396 (1st Dist. 1995), the First District rejected a mitigation defense because the employer “did not present any evidence of other appropriate jobs” for which the employee was qualified. Defendants’ own authority states both elements. Tatum v. 10 Roads Express, LLC, 760 F. Supp. 3d 615, 627 (N.D. Ill. 2024).

Defendants’ Response addresses only the first element. They audit [REDACTED] job search log and count 274 days across twenty seven intervals in which she recorded no activity. Assume, without deciding, that a jury could view those gaps as evidence of imperfect diligence. The assumption does Defendants no good, because their Response offers nothing on the second element. It identifies no open position comparable to [REDACTED], no employer that would have hired her sooner, no recruiter testimony, no labor market survey, no expert opinion, and no job posting evidence of any kind. Compare Williams v. Imperial Eastman Acquisition Corp., 994 F. Supp. 926, 934 (N.D. Ill. 1998), where the employer submitted a survey showing 118 available quality assurance positions suited to the plaintiffs’ qualifications. Defendants submitted nothing comparable. Nothing at all, in fact.

The second element is not a technicality. It prevents an employer from inviting the jury to assume that comparable work must have existed somewhere because the plaintiff was experienced and unemployed. Gurnee Inn, 914 F.2d at 818-19. That inference is especially unreliable here. [REDACTED] sought senior validation and quality management roles in a specialized corner of the pharmaceutical industry, not fungible positions in a market of perpetually open jobs. A defense with two elements fails when the defendant has evidence on only one.

The parties spar over Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560, ¶ 214. The Court need not resolve that dispute. Holland reviewed a jury verdict deferentially and does not fix a threshold that establishes mitigation as a matter of law. The ruling here rests on a simpler ground. Defendants bear the burden of proof on this defense, discovery is closed, and they lack evidence on an essential element. Under Colburn, that entitles [REDACTED] to judgment on the defense. Her sixteen-month search, her more than sixty applications, and her acceptance of a comparable position all reinforce the conclusion, but the absence of availability evidence decides it.

The lower salary at [REDACTED] deserves one further word. Defendants do not argue, and could not on this record, that the pay difference shows a failure to mitigate. It measures [REDACTED] ongoing damages. It does not prove that she unreasonably declined better work, because she declined no offers at all.

The Court grants [REDACTED] motion for partial summary judgment on the First Affirmative Defense. Defendants may not present a failure to mitigate defense at trial (otherwise the jury would be invited to speculate).

6. The Remaining Affirmative Defenses Are Not Affirmative Defenses

Illinois distinguishes an affirmative defense from a denial. A true affirmative defense gives color to the plaintiff’s claim, assuming its legal sufficiency, and then asserts new matter that defeats the plaintiff’s apparent right to recover. Vroegh v. J & M Forklift, 165 Ill. 2d 523, 530 (1995); Rohr Burg Motors, Inc. v. Kulbarsh, 2014 IL App (1st) 131664, ¶ 63. A pleading that merely denies an element of the plaintiff’s case, or contests her proof, is not an affirmative defense at all. Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 344 (1994). The label matters. Affirmative defenses carry their own burdens and go to the jury as independent bars to recovery. Submitting merits denials in that dress invites confusion. Measured against the Vroegh test, the Second, Third, and Fourth Affirmative Defenses all fail.

The Second Affirmative Defense asserts that [REDACTED] cannot plead or prove the oppression, fraud, malice, or wanton conduct that punitive damages require. That is a challenge to [REDACTED] proof, not new matter. [REDACTED] bears the burden of establishing the predicate for punitive damages. Saying she cannot carry that burden adds nothing extrinsic to the case. Defendants’ comparative fault analogy illustrates the difference rather than saving the defense. Comparative fault pleads something new, the plaintiff’s own negligence, that reduces recovery even if the plaintiff proves her whole case. An argument that the plaintiff’s evidence falls short of a damages standard pleads nothing new. Defendants remain free to oppose punitive damages on the merits, to challenge any punitive damages instruction, and to make appropriate motions at trial under the standards discussed in Section IV. But “no punitive damages” is not a freestanding affirmative defense for the jury to decide.

The Third Affirmative Defense asserts that Fresenius Kabi terminated [REDACTED] for a legitimate nondiscriminatory, nonretaliatory reason. That is the core merits defense in every retaliation case, and it is a denial of causation. Under Michael, an employer’s valid, nonpretextual reason defeats the causation element that the plaintiff must prove. 2014 IL 117376, ¶ 39. A contention that negates an element of the plaintiff’s claim is not affirmative matter. Korando, 159 Ill. 2d at 344. Nor does the burden shifting framework change the analysis. Burden shifting organizes the proof at trial. It does not transform the employer’s articulated reason into new matter. Defendants may, and surely will, present their dishonesty rationale to the jury. They will do so as a denial of causation, not as a separate affirmative defense.

Defendants invoke section 32 of the Whistleblower Act: “It shall be a defense to any action brought under this Act that the retaliatory action was predicated solely upon grounds other than the employee’s exercise of any rights protected by this Act.” 740 ILCS 174/32. Section 32 cannot rescue the Third Affirmative Defense, for two independent reasons. First, Defendants did not plead it. The defense as pleaded asserts a general legitimate reason spanning the entire case; it invokes neither the statute nor its “solely” standard. Second, the General Assembly added section 32 through Public Act 103-867, which applies only to claims arising or complaints filed on or after January 1, 2025. Pub. Act 103-867, § 90 (eff. Jan. 1, 2025). [REDACTED] claims arose from an October 2023 termination, and she filed this case in 2024. Section 32 does not govern this action, and the Court expresses no view on how it operates in cases it does cover.

The Fourth Affirmative Defense asserts that [REDACTED] lacked a good-faith basis to believe she engaged in protected activity and that her complaints reflected managerial disagreements and the routine performance of her job duties. Whether [REDACTED] engaged in protected activity is part of her affirmative case under the Whistleblower Act and the common law. A defense that says she did not, or that she lacked the belief the statute requires, denies an element. It confesses nothing and avoids nothing. Defendants may cross examine, argue, and request instructions on protected activity. They may not submit its absence to the jury as an independent affirmative defense. Vroegh, 165 Ill. 2d at 530; Korando, 159 Ill. 2d at 344.

Granting this portion of [REDACTED] motion removes labels, not arguments. Defendants keep every merits contention these three defenses describe. What they lose is the ability to present denials of [REDACTED] case as separate defenses occupying their own place on the verdict forms. The Court grants [REDACTED] motion for partial summary judgment on the Second, Third, and Fourth Affirmative Defenses, without prejudice to Defendants’ right to contest the corresponding elements and remedies at trial.

CONCLUSION

For these reasons, the Court:

• denies Defendants’ motion for summary judgment on Counts I and II;
• denies Akstulewicz’s motion for summary judgment as to Count I and grants it as to Count II, which is pleaded against Fresenius Kabi only;
• denies Defendants’ motion for partial summary judgment on punitive damages;
• grants [REDACTED] motion for partial summary judgment on the First Affirmative Defense (failure to mitigate); and
• grants [REDACTED] motion for partial summary judgment on the Second, Third, and Fourth Affirmative Defenses, without prejudice to Defendants’ merits arguments on these issues at trial.

Counts I and II will proceed to trial against Fresenius Kabi, and Count I will proceed against Akstulewicz. The punitive damages question remains in the case.

DATED: July 28, 2026