When last we left Boles v Merck, the case had been tried twice and the trial court had certified for appeal its decision denying defendant’s motion for judgment as a matter of law or in the alternative for a new trial.  In denying the defense motion, the court saw fit to reduce the verdict, which the plaintiff rejected in favor of seeking a new trial.  See posts here and here.
While we are still waiting to see if the Second Circuit will accept that appeal, it did have something to say about plaintiff’s counsel’s attempt to appeal the order imposing minimal sanctions against him for his outrageous conduct in Boles IIDouglas v. Merck & Co., Inc., No. 10-4196-cv, slip op. (2d Cir. Jan 23, 2012) .  They quashed it and told Douglas he had to wait until the trial court’s decision to reduce the verdict was before the appellate court – something we hope happens sooner rather than later.
And, while this is really a non-event, what it reminds us is that we needn’t be talking about appeals of remittiturs and sanctions – what we should really be seeing is a new trial.  So, since it is a slow news days, we’ll take a minute to stand on our soap box and once again advocate that courts should be more willing to toss out verdicts that are a product of juror passion and prejudice rather than simply remitting them.  Just looking at Boles II as an example, 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.” In re Fosamax Products Liability Litigation, 742 F. Supp. 2d 460, 484 (S.D.N.Y. 2010) If the jury awarded the plaintiff over five times the maximum amount of justifiable compensatory damages, isn’t that sufficient proof that the verdict was tainted?   And where there is taint, a new trial should follow.
We understand that new trials based on attorney misconduct and subsequent jury passion are rare because generally courts afford lawyers latitude when representing their clients.  But lawyers need to be held accountable when they go too far.   There is a limit to what lawyers can do in the courtroom when advocating on behalf of their clients.  When plaintiffs’ attorneys – in pursuit of excessive verdicts — are allowed to vilify defense witnesses, attack defense counsel and distort and mischaracterize the evidence to the jury, the basic tenets of fairness and impartiality in litigation go out the window. 
Jurors are people too.  As such they, we all know that they are influenced by things like whether they connect to a particular witness, fun demonstratives, and well even if their seats are comfortable.  All that aside, juries primarily should be focused on the facts and their verdicts should be supported by the facts in evidence.  When they aren’t, new trials are warranted.  That should be true if the evidence just isn’t there or if the evidence has been so diluted by attorney misconduct that that misconduct affected the outcome of the trial.    
Where an excessive verdict is given under the influence of passion and prejudice (which seems to have been the conclusion of the trial court in Boles II), remittitur isn’t enough.  The misconduct should be seen as not simply tainting the amount of the verdict, but indeed the finding of liability itself.  Boles itself proves this point considering that without the disingenuous antics of plaintiff’s counsel, the jury in Boles I found in favor of the defendant.  While remitting the verdict helps, it doesn’t take away the bad precedent set by a plaintiff verdict in any amount.
Also, Happy Birthday Bexis!