In July, we asked whether plaintiff’s counsel’s outrageous conduct in a Fosamax trial would be rewarded or punished. Yesterday the court, in effect, rewarded that conduct by refusing to order a new trial. In re Fosamax Products Liability Litigation (Boles v. Merck & Co.), No. 06-MD01789-JFK, slip op. (S.D.N.Y. Oct. 4, 2010). The court also found nothing wrong with the jury deciding that an FDA-approved drug was “unreasonably dangerous” for a use that the FDA had found safe and effective.
We detailed the outrageous conduct by plaintiff’s counsel in our earlier post on this case, and it is described in greater length in the opinion. Slip op. at 34-45. Suffice it to say that plaintiff’s counsel vilified defense witnesses; attacked defense counsel; mischaracterized the evidence; created a baseless conspiracy theory that Merck (our client in other matters) knew that Fosamax provides no benefit to certain users; argued that Merck intentionally misrepresented the effectiveness of its product for monetary gain; and attempted to argue for punitive damages after the court excluded them. Not much, eh? And, for good measure, counsel sang, laughed, gestured wildly, rambled, was manic, and on and on.
Shouldn’t that be enough to warrant a new trial? No, said the trial judge, it didn’t affect the verdict – although the court, professing puzzlement at the jury’s award, then sua sponte reduced the verdict by over 80%.
Before we dissect the judge’s reasoning, let us say here that we have great respect for the trial judge. We had a case before him years ago and were very favorably impressed. But even good judges get it wrong sometimes, and we believe that this decision is wrong.
The court dismissed much of the conduct because it did not touch on the key evidence of the case. But outrageous trial conduct rarely takes the form of a reasoned debate on the key evidence; rather, it intentionally shifts the jury’s attention to topics other than the central issues and asks the jury to decide the case on impermissible grounds. For example, an ad hominem attack on a key defense witness does not address directly the key evidence, but sure as shooting the attack is intended to undercut the witness’s credibility on the key issues.
The trial judge said that jurors would have concluded that plaintiff’s counsel was acting unprofessionally and that his conduct “easily could have inured to the detriment of his client.” Slip op. at 46. Jurors, however, do not typically engage in the dispassionate, compartmentalized analysis that comes to trial judges as a matter of course. Jurors cannot be counted on to disregard or hold against the client what a judge thinks is nutty, ineffective advocacy, especially when that advocacy is calculated to appeal to the jury’s emotions rather than the judge’s reason.
Presumably the lawyer in the Fosamax trial engaged in outrageous conduct in a calculated attempt to help his client. Given that (a) the jury heard essentially the same evidence that was introduced in a prior mistrial, which ended with the jury 7-1 in favor of Merck, (b) the only real difference in this trial was plaintiff’s counsel’s conduct, and (c) the jury found in favor of plaintiff, counsel’s advocacy appears to have helped rather than hurt his client. Results speak louder than after-the-fact rationalizations.
Perhaps the clearest sign that the outrageous conduct improperly affected the verdict was that the jury awarded the plaintiff $8 million even though plaintiff’s counsel asked for $3 million to fully compensate his client. The court said it was “not convinced that the large verdict was a result of counsel’s summation” and believed that “the $8 million verdict is more likely explained by a jury out of touch with the amount of money that would reasonably compensate Plaintiff for her injuries.” Slip op. at 49.
Wait a minute. This plaintiff’s lawyer – not the hypothetical reasonable plaintiff’s lawyer, but this particularly outrageous plaintiff’s lawyer, who was so completely over-the-top in his advocacy for his client – told the jury that his client needed $3 million as full compensation for her injuries, and the jury awarded $8 million. Isn’t that a big, flashing, incontrovertible sign that counsel’s advocacy improperly influenced the jury? What else could possibly explain that verdict?
The court in essence confirmed in the very next section of its opinion that the only explanation for the verdict was the improper conduct. In ruling sua sponte on remittitur, the court said that it “believes the $8 million verdict is unreasonably high, but cannot point definitively to anything in the records that caused the surplus.” Slip op. at 49. Exactly our point. There is no explanation in the trial record other than that elephant in the jury room, plaintiff’s counsel’s improper conduct. Talk about ignoring the elephant in the room.
The trial judge then reduced the verdict to $1.5 million. In other words, the jury awarded the plaintiff over five times the maximum amount of justifiable compensatory damages. Doesn’t that provide even further proof that the verdict was tainted? The only concrete information the jury provides at a trial is its verdict, and all other attempts to ascertain the prejudicial effect of conduct are necessarily based on speculation about the effect of that conduct on a jury. When the only available direct information screams taint, a new trial should follow.
The court also rejected Merck’s other mostly fact-specific grounds for judgment as a matter of law or a new trial. The one ruling that caught our eye was the court’s rejection of a preemption defense. One of plaintiff’s claims was that Fosamax was “unreasonably dangerous” because its risks allegedly outweighed its benefits. Merck said that that claim was preempted because the FDA had determined that Fosamax was safe and effective and plaintiff’s claim asked the jury, using state tort law, to contradict the FDA’s decision. Slip op. at 26. The court disagreed, holding that state tort law complements federal law by imposing an additional duty of care on manufacturers. Id. at 28-30.
In a recent post, we addressed at length this kind of second-guessing of the FDA, and we won’t repetitively reiterate our arguments again. We hope that someone takes this issue to the Supreme Court, and soon, because more and more juries are being asked to play FDA and decide if an FDA-approved drug is safe and effective.