Following the progress of a case in litigation is like watching a story unfold. As practicing lawyers, we have been following these stories for all of our professional lives, and we have developed a sense of what should happen next. Plaintiff’s expert reveals on the stand that he lost his license for moral turpitude but never told anyone, defense wins. Defendant can’t remove a case from a judicial hellhole where the plaintiff is represented by the judge’s biggest campaign contributor, defense starts thinking about settling the case.

We have been following the story of the Fosamax case in New York brought by plaintiff Shirley Boles against Merck (our client in other matters). The story isn’t over yet, but we have a strong sense of what should happen next.

Step 1: The first trial ends in a hung jury, with the jury leaning 7-1 in favor of Merck.

Step 2: At the second trial, the jury awards the plaintiff $8 million, $3 million more than the plaintiff’s counsel sought during summation.

Step 3: Last week, the trial judge ordered trial counsel for plaintiff to show cause why he should not be sanctioned for improper conduct in closing. The order to show cause provides quite the laundry list of plaintiff’s counsel’s actions at trial:

  • Referring to another trial before the jury, despite explicit instructions not to refer to other cases;
  • Misstating the date of a key report during summation;
  • “[A]ttacking the FDA during summation for the manner in which it is funded, characterizing it as having an ‘incestuous’ relationship with pharmaceutical companies under which it gives cursory reviews and expedited approvals of new drug applications ‘in exchange’ for funding, after the Court already had ruled that FDA funding had no relevance to the case”;
  • Criticizing the FDA’s ability to regulate drug safety and comparing its alleged shortcomings to the government’s response to Hurricane Katrina;
  • Injecting punitive damages into the trial by asking the jury “to say something to Merck” after punitives were dismissed on summary judgment;
  • Offering counsel’s own opinions of the evidence;
  • Improperly referring to adverse event reports in violation of a pretrial ruling;
  • Using a demonstrative with the single word “hypocrisy” to describe the conduct of Merck and its counsel; and
  • Repeatedly disparaging defense witnesses and acting rudely to defense counsel, including “using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing, and admittedly ‘fooling around’ and ‘making fun.’”

Judge Keenan is reported to have said that this was the most outrageous summation he had ever heard – and he has been on the bench for 27 years and practiced for nearly 30 years before taking the bench.

Step 4: This step hasn’t happened, but shouldn’t Merck receive a new trial? The trial judge reportedly denied defense motions for a mistrial during trial, but now has issued the order to show cause. Those repeated violations of court orders, references to matters outside the evidentiary record, and injections of personal opinion must have violated the defendant’s right to a fair trial. And if a closing argument that over the top does not require a new trial, then the plaintiffs’ bar will have no incentive to refrain from similar tactics. Indeed, the simple message of the case will be this: with outrageous tactics, a plaintiff’s lawyer can turn a 7-1 defense victory into an $8 million plaintiff’s win. One-third of $8 million will cover the anticipated sanctions with plenty to spare.

Step 5: After ordering a new trial, the court should order plaintiff’s counsel to pay the defense costs. A federal judge in Philadelphia recently ordered plaintiff’s counsel and his firm to pay the defendant’s fees, costs, and expenses after a mistrial caused by plaintiff’s counsel’s violations of the court’s rulings during trial. A similar order would be a just remedy for the misconduct in the Fosamax trial.