Daily NJ USDC Opinions: Trial Judge Pisano Leaves Possibility Of Punitive Damages Open -- For The Moment. . .

Tonight's electronic federal District Court filing window in Trenton, New Jersey finds another newly-published interim opinion -- from the very capable Judge Pisano -- in the first femur fracture bellwether trial. In a 16 page opinion, full PDF file is here, the court has ruled that Merck will be unable to summarily "knock out" most of Mrs. Glynn's theories of liability, at least not without putting on its full defense. In fact, it seems fairly likely that most of them will reach the jury, for deliberations.

Most significantly, Judge Pisano has reserved judgment on whether New Jersey state law applies, or New York state law applies -- as to Mrs. Glynn's claim for punitive damages. To grossly oversimplify, in New Jersey, in pharma cases, punitive damages are as rare as hens' teeth, but are more common under the more liberal New York state laws governing the award of punitive damages. In the punitives jury charge count -- or punishment damages -- are where the truly eye-popping verdicts are usually assembled. So the fact that punitives are still on the table is good news for Mrs. Glynn. It might even encourage a private mid-trial settlement.

Cutting against that notion is the fact that all parties want to see what a typical case might encourage the jury to do. If Merck settles now, we may fairly infer only that Merck has become convinced Mrs. Glynn's is not a very typical case of femur fracture. We shall see. Here is the operative quote from the above opinion:

. . . .The parties dispute the choice of law standard that applies to punitive damages. Plaintiffs argue that New York or Pennsylvania law applies while Defendant asserts that New Jersey law applies. This Court denies summary judgment because it needs a trial record to decide which states’ law applies to punitive damages. The Motion may be renewed at the close of Plaintiffs’ case.. . .

So do stay tuned. We will keep you up to speed, here. This trial could actually move Merck's NYSE price a bit, in a downward bubble, if a large punitives verdict is reached by the jurors. But we are probably two weeks away from that point (should it ever appear), yet.