Almost Four Years On -- And Still No Argument Date, For The Appeal Of Boles' (Fosamax® ONJ) Counsel Sanctions Ruling, In The Second Circuit

Before we head out to a busy, actively athletic and fun-filled weekend, we will take a quick look back -- at some dangling threads (to tie them up). . . on what appears at this point to be a very slow news weekend for Whitehouse Station. So here goes:

Back in July of 2010, during the plaintiff's counsel summations in 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 was claimed -- improperly arguing (in summation) that the jury should calculate the damages award to "punish" New Merck.

In that case (and almost all other) Fosamax ONJ cases, the required pleadings and showings for so-called "punitive" damages did not exist. [To be fair, the image at right, used by the Merck lawyers in summation in Boles II -- also seemed questionable -- as it suggested the judge would be willing to pay the jury for for the truth. In sum, there was quite a bit of hard-nosed, "border-lining" advocacy, at the end of the trial, on both sides, 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.

Back in 2011, the Second Circuit ruled that it didn't have jurisdiction to decide whether the sanction was appropriate, because the questions raised by the sanctions appeal were too closely intertwined with the questions then still in play, in the retrial on the merits (Boles III). That trial never occured as both sides agreed to settle, in confidnece. And in fact, the ONJ cases in total are all winding their way toward a global settlement, as I write this -- four years on. About a month ago, the Second Circuit -- which handles appeals taken from Judge Keenan's Manhattan federal District Court, entered by endoresement a letter order delaying until at least late 2014 any hearing on the appeal. So, the involved lawyer will have to wait into 2015, in all likelihood, to know whether his summation went beyond the pale, then some five years ago.

You may also recall that this litigation also featured (not even a month ago!) the New Jersey state appelate courts' very public scolding (by order and opinion) of all lawyers involved, for failing to notify the court that a settlement had been entered -- thus wasting the taxpayers' time and money -- on writing an opinion, on a separate appeal. This would suggest that all of the points in litigation were hard fought. And as we covered it, you know they were. Lots of high-jinx, throughout.