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.