Tag Archives: Amgen Prolia FDA EMEA Merck Fosamax Bone Density Osteonecrosis Claims Femur and Jaw Jury Trial US Dist Ct NY Bellweather Case Keenan Boles II July 10 2010

The “Other, Other” Side. . . Fosamax® Attorney Conduct Proceedings


In the spirit of fairness, I’ll also post a PDF file of the Merck trial counsel’s complaint letter.

Readers should bear in mind that — as the loser of the $8 million jury verdict — Merck’s legal team may have some additional motivation, beyond simple courtroom decorum. A ruling imposing sanctions on the one plaintiff’s lawyer might — emphasis might — be used to bolster Merck’s arguments for a retrial of the Boles Fosamax® ONJ case (Boles III, anyone?).

To be clear, though, I think such an outcome (a third trial) is unlikely in the extreme. In any event, here’s a bit of that letter:

. . . .[The attorney’s] demeaning treatment of the witnesses presented by the defense and the deliberate mischaracterization of their testimony could, in other circumstances, create a serious impediment to the willingness of such witnesses to testify in the future. If that happened, such conduct would hinder the pursuit of justice in those cases. It will not happen here because of the dedication, convictions, and professional integrity of the Merck witnesses. . . .

The manner in which the “outrageous summation” and other conduct affected the trial will be the subject of post-trial motions and I do not address it here. I mean this letter to set out only my views on the manner in which counsel’s conduct has the potential lo affect our system of justice. . . .

That bolded bit (in the excerpted first paragraph’s conclusion) may effectively undercut Merck’s motions for a new trial, here.

As ever — we’ll see.

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“The Other Side Of The Story” — In The Fosamax® Boles II Attorney Conduct Proceedings


A lawyer representing the attorney whose conduct has been the subject of federal court proceedings to decide whether sanctions are warranted has offered her client’s explanation of these events. The entirety of these twin letters of explanation may be found as PDF files here, and here.

Here is a portion of both letters:

. . . .[The plaintiff’s attorney] is deeply apologetic that he has offended the Court, and wishes the Court to understand that he never intentionally violated any standing or specific order of Your Honor in this case. . . .

Perhaps [the attorney’s] use of sarcasm and humor and his overall trial style concerned the Court; and it appears that at least in one instance, Your Honor believed that the evidence had not been accurately presented. . . .

[The attorney] deeply apologizes for his conduct which has offended the Court. His presentation may be different than what the Court prefers, but he believes that it embodies the fundamental qualities to which this Court adheres — hard work and zealous advocacy within the bounds of the law. . . .

[The attorney] has always believed that the court system provides justice to those who appear before it, and he believes that he has always tried to conduct himself in a manner that demonstrates his respect for the court system; and to the extent that the Court believes otherwise, [the attorney] offers his most profound apologies. . . .

Previously, in my letter of July lst, I expressed the fact that [the attorney] has been chastened by this experience and assures this Court that he never intended to act improperly before this Court, to disrespect this Court in any way or to otherwise act to diminish the dignity of this Court. With respect to [Merck trial counsel’s] letter, [the attorney] maintains that while his style might have been different than the style this Court is comfortable with, his conduct was undertaken for the proper purpose of advancing his client’s interests within the bounds of the law and this Court’s rules, and he never knowingly violated any directive of this Court. . . .

[The attorney] was entitled to argue from the evidence and that is precisely what he did — and rightly so. Moreover, a review of the summation transcript indicates that [the attorney] read verbatim from the sentence he highlighted in the blow-up while pointing out it was not the entirety of [the witness’s] answer to the question. . . .

[The attorney] was of the belief that such advocacy was proper, and [Merck’s counsel] never objected to tho tone and tenor of [the attorney’s] summation; nor did Your Honor sua sponte direct [the attorney] to cease engaging in any particular form of summation advocacy. . . .

On balance, a pretty good pair of letters, but I still think it more likely than not that some form of sanction will be entered against the lawyer, personally — but not his client. It could likely be as mild as a stern admonishment — or as severe as a disqualification from trying any additional Fosamax MDL cases. We’ll see.

In short — in my view, without more, this is not likely to affect whether the verdict stands. I think it will.