Thursday, September 9, 2010

Boles II Fosamax® ONJ Attorney Conduct: Oral Argument Today, At 11 AM EDT In Manhattan

In about an hour, the very able US District Court Judge John F. Keenan, sitting in Manhattan, will hear oral argument on whether to discipline one of Shirley Boles' lawyers. As I've earlier explained, there was quite a bit of "colorful" argument -- especially during the closing arguments -- from both sides of the aisle, in Boles II. In the end, though, the jury returned an $8 million verdict for Mrs. Boles -- on her Fosamax® ONJ claims.

While today's argument won't directly determine whether a third trial of the Boles case will be required, it will certainly give a sense of whether Judge Keenan is still smoldering -- about the purported conduct of the lawyer in question. As I say though, both sides offered some questionable material to the jury. [At bottom is an image of Judge Keenan's earlier endorsed order.]

Now, to be fair, here is some of what Merck's lawyers were up to, during closing arguments -- so it is fair to ask, I think, whether Mr. Douglas being selectively faulted, here:

. . . .[Mr. Douglas:] I must point out that I have always understood that a lawyer cannot argue his or her own personal views of the evidence; but, at the same time, I have never understood there to be a blanket prohibition to arguing before a jury that certain evidence was the truth. In fact, I am confident defense counsel would have to agree that there is no prohibition in this regard. After all, one PowerPoint slide used by the defense in summation. . . contained a picture of Check 2400 [Ed.: see image at right], which read: “‘Pay to the Order of’ The Truth” (and the term “The Truth” was in very large typeface). Moreover, the check made payable to “The Truth” was signed by “John Keenan” (and the words “John Keenan” were in very large typeface). . . .

Thus, not only did defense counsel use the term “truth,” they implied that the trial judge was subscribing to the defense’s version of the truth. I did not object because I believed that this was a transparent, presumptuous and “cheesy” attempt –- in obvious poor taste –- to influence the jury, but not done in a way that was necessarily unethical. I respectfully submit that it would be inappropriate and unfair to punish me for a less flagrant use of the term “the truth” when my use of that term was intended as a tool of advocacy, not an improper claim of personal belief. . . .

We'll pass along word, if there is a ruling from the bench today.

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