Monday, March 12, 2012

Mrs. Boles' Fosamax® ONJ Lawyer Will Have To Wait -- To Appeal His Sanctions Order

During the lawyers' summations of the Boles II Fosamax® ONJ trial, the very able New York federal District Court Judge John F. Keenan held one of the lawyers before him in contempt for an alleged act of professional misconduct -- and subsequently ordered that particular lawyer to pay a $2,500 fine for -- it is claimed -- arguing in summation that the jury should calculate the damages award to "punish" New Merck. In this (and almost all other) Fosamax ONJ cases, the required pleadings and showings for so-called "punitive" damages did, and do not exist. [To be fair, the image at right, used by the Merck lawyers in summation -- also seemed questionable -- as it suggested the judge would be willing to pay the jury for for the truth. There was quite a bit of hard-nosed, "border-lining" advocacy, at the end of the trial, on both sides, it would seem, in Boles II.]

So, a "punishing" damages verdict from the jury would be inappropriate. And so, to intentionally mislead the jury -- by appealing to passion or prejudice by arguing for such a punishing award, in summation, would arguably be misconduct.

The appellate court just ruled that it doesn't have jurisdiction to decide whether the sanction was appropriate, because the questions raised by the sanctions appeal are to closely intertwined with the questions still in play, in the retrial on the merits (Boles III). So, the involved lawyer will have to wait to file his appeal until Boles III is complete. From the appellate oourt mandate order (PDF file, 4 pages), then:

. . . .[B]ecause the sanctions inquiry now urged “would differ only marginally from an inquiry into the merits,” Cunningham v. Hamilton Cnty., 527 U.S. at 206, the collateral order doctrine does not apply here.

Further, although a final order in this case awaits retrial, that circumstance only delays Douglas’s ability to appeal the sanctions order; it does not render that order unreviewable. Whenever and however a final judgment is entered, “an attorney may appeal a decision where the district court imposes a tangible sanction or makes an express finding that a lawyer has committed specific acts of professional misconduct.” Keach v. County of Schenectady, 593 F.3d 218, 226 (2d Cir. 2010). . . .

For the foregoing reasons, the appeal is dismissed for lack of appellate jurisdiction. . . .

Now we wait until later in 2012, for the retrial of the damages award portion of the Boles II verdict -- also to a jury -- but this time to an entirely new jury.


Gorrickian said...

Is it now likely that Boles III is going to be put off until September?

Of course the jury could still decide that damages will be set as extremenly low as the $8 million verdict was exceedingly high.

Ms Boles major contribution to her own condition as a heavy smoker despite all the information available to her must make her responsible for most of the damage. And perhaps she sohould have sued the tobacco companies if she felt someone other that her had to take the blame for what her smoking did.

condor said...

Yes -- I think Boles III is still awaiting a September 2012 date.

As to the rest of yours, I guess that's what juries are for -- to figure out what were the facts. [All of what you wrote involves a series of allegations, not facts -- at least not facts, as found by the only jury to consider Mrs. Boles' case -- just to be clear.]

In any event, a duly sworn federal trial court jury found Mrs. Boles' damages from Fosamax were to be compensated at $8 million. They were all right there, live in the courtroom, and apparently weren't persuaded that Mrs. Boles' smoking was the primary cause of her injuries.

Perhaps they also expected that Merck would have warned about the increased risk to smokers -- who take Fosamax over long (greater than 3 year) stretches, without a drug holiday -- of seeing ONJ appear.

Truly, the later developed study evidence suggests that profits were put ahead of patients, here --inasmuchas putting someone on Fosamax for life generates huge steady revenue streams for Merck, but many -- including Mrs. Boles, it seems -- didn't have osteoporosis at all, when they were started on Fosamax.

That expansion of the definition of what conditions it ought to be prescribed formay well explain the size of the verdict.

There is essentially no real, recognized disease called "osteopenia" -- it is term invented by Whitehouse Station marketing teams -- all allegedly, of course.

It is the precursor to osteoporosis -- but "inventing" it greatly expands the eligible patient pool. That is Mrs. Boles' case.

And so, I do expect large damages in the fall of 2012.

Do stop back -- I appreciate your take on it -- I just don't get to the same conclusions, given Merck's part in the "semi-" off-label marketing effort (osteopenia v. osteoporosis), here.

All that you've written