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Fosamax Remittur and Sanctions

A Southern District of New York judge has granted the defendant’s remittitur motion after an $8 million verdict in a Fosamax trial, leaving Plaintiff’s attorneys with a tough choice: take the $1.5 million remittitur or take a new trial. It is like kicking a field goal while there is a penalty on the defense, that gives the kicking team an automatic first down. Do you take the points off the board? For Plaintiff’s lawyers, their advice depends on where the Plaintiff is on the figurative field. The question is what is the settlement value of the case? If it is less than $1.5 million, it is a good ‘settlement” that you have to take, even while grinding your teeth.

In an unrelated event, Plaintiff’s lawyer was sanctioned by the court for referencing another Fosamax trial after the trial judge specifically warned him not to do so, which Plaintiff’s attorney knew anyway as an experienced trial lawyer. He also said that what Fosamax manufacturer Merck did was “reprehensible” and “disgusting” in his closing argument.

Were these sanctions warranted? With respect to referencing other Fosamax lawsuits and trials, I think it really depends on the context and the intent which is hard to surmise unless you were actually there. But I don’t think to call Merck “reprehensible” and “disgusting” in the closing argument comes anywhere near a sanctionable offense. Plaintiff’s lawyer is arguing that this is awful and that negligence is not even a close call. As a matter of trial tactics, I think this is a bad idea because the jury can figure out on their own if the conduct is reprehensible or disgusting. My thinking is, just lead the horses to the water and let them drink it themselves. But that is a trial tactic question. I don’t see why this is worthy of sanctions.