Merck Appeals Its Loss, To Fourth Circuit, In Jennifer Scott’s Legacy Schering-Plough Retaliation Case


Back in January 2011, I described the outcome at trial of this case (summarized in graphic at right). Merck has filed an appeal, claiming no reasonable jury could have found against it here.
You decide, from the last substantive filing in the matter: the judge’s memorandum opinion (an 8 page PDF file):

. . . .Merck advances several arguments in support of its position. It claims that it was surprised by Scott’s trial testimony regarding the continued employment of Thomas and Steneman, and that it was not prepared to respond with the explanation it now proffers.

According to Merck, it is undisputed that Scott would have lost her job as a result of the merger, and it urges that as a matter of law Scott cannot recover damages for any period beyond the elimination of her position. Furthermore, Merck maintains that Scott’s testimony improperly implied that some members of Liberato’s sales team had not lost their jobs, and it urges that the jury deliberated under this mistaken impression. If the Court declines to remit damages, Merck thus requests a new trial to explain that Thomas and Steneman had indeed been laid off but secured other posts. In this vein, Merck asserts that it would be sheer speculation to posit that Scott, too, would have successfully applied for another position within Merck.

Scott responds that the jury was entitled to conclude, at the very least, that Merck had not presented a complete picture with regard to effects of the merger. As Scott points out, the import of Randall’s testimony (that Liberato’s entire team had been laid off) is that the team members are no longer employed at Merck. Scott testified that to her knowledge, two of her former teammates were still working at Merck. Thus, Scott’s testimony was fair rebuttal. The jury rejected Randall’s testimony, meaning that they disbelieved Randall or concluded that Merck found a way to keep favored employees. . . .

The denial of Merck’s motion for judgment despite the verdit at trial was just docketed Friday, with the Fourth Circuit. We will keep you posted, but based on the findings at trial, and after it, in the District Court in Maryland, it would seem that Merck has only a very small probability of success on appeal.

The trial court’s rulings are based on live testimony, and fall well within factual, as opposed to legal, conclusions. As such, the trial court’s determinations will be given great weight on appeal.

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