Almost four years ago now -- after lawyers for Shirley Boles won an $8 million Fosamax® ONJ verdict (which was subsequently reduced, and settled) -- Judge John F. Keenan, sitting in Manhattan's federal District Courthouse, entered a sanctions order, reprimanding one of her lawyers, and fining him $2,500.
Judge Keenan held that the lawyer had violated several of the judge's prior orders, regarding allowable argument. That lawyer then appealed Judge Keenan's sanctions -- to the federal Second Circuit. In an opinion and order published this week, a three judge appellate panel overturned Judge Keenan, saying he hadn't made it clear enough that the lawyer's conduct went beyond zealous advocacy. So that lawyer will not have to pay the fine, and the note will be removed from his electronic jacket.
Below, I'll set out a bit of both sides' "shenanigans" (see Merck's crazy Powerpoint slide at right, in this regard) -- in Boles II. As we can see both sides got well out of hand, in the land of borderline advocacy -- and because the plaintiffs didn't seek sanctions against Merck's lawyers, Judge Keenan only explicitly considered plaintiffs counsel's conduct, in his sanctions order. Do go read these two background pieces -- from that time, here, and here. . . for the more fullsome story:
[As Judge Keenan himself wrote four years ago:]. . . .The Court in no way condones the [plaintiff counsel's]. . . conduct at trial. Nevertheless, viewing [plaintiff counsel's] behavior in the context of the trial as a whole, a new trial is not warranted. As the Court described above in denying Merck’s Rule 50 motion, Plaintiff introduced sufficient evidence to sustain a verdict. Although the Court disapproves of the manner in which [plaintiff counsel] delivered his summation, it cannot conclude that his unusual antics prejudiced Merck. The majority of questionable conduct raised by Merck and noted by the Court did not touch on the key evidence of the case. No matter how much counsel criticized the FDA’s ability to regulate drugs or mocked the defense witnesses’ courtroom demeanor, those comments had little impact on the fundamental questions the jury was called upon to answer, that is, whether the evidence showed that Fosamax’s risks outweigh its benefits and whether the drug caused Plaintiff to develop ONJ. . . . [And yet he sanctioned that plaintiff's lawyer, in a subsequent order.]
The Second Circuit, on appeal, reversed that outcome -- this week:
. . .[The remarks of plaintiffs' counsel] are not self-evidently improper, and the [District Court Judge John F. Keenan] did not expressly link these remarks with other behaviors or other factors that might bear upon the issue of bad faith. . . .
Now you know. Aggressive lawyering is not. . . necessarily improper or unethical lawyering. Additional background, here.
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