During the lawyers’ summations of the Boles II Fosamax® ONJ trial, the very able New York federal District Court Judge John F. Keenan held one of the lawyers before him in contempt for an alleged act of professional misconduct — and subsequently ordered that particular lawyer to pay a $2,500 fine for — it is claimed — arguing in summation that the jury should calculate the damages award to “punish” New Merck. In this (and almost all other) Fosamax ONJ cases, the required pleadings and showings for so-called “punitive” damages did, and do not exist. [To be fair, the image at right, used by the Merck lawyers in summation — also seemed questionable — as it suggested the judge would be willing to pay the jury for for the truth. There was quite a bit of hard-nosed, “border-lining” advocacy, at the end of the trial, on both sides, it would seem, in Boles II.]
So, a “punishing” damages verdict from the jury would be inappropriate. And so, to intentionally mislead the jury — by appealing to passion or prejudice by arguing for such a punishing award, in summation, would arguably be misconduct.
The appellate court just ruled that it doesn’t have jurisdiction to decide whether the sanction was appropriate, because the questions raised by the sanctions appeal are to closely intertwined with the questions still in play, in the retrial on the merits (Boles III). So, the involved lawyer will have to wait to file his appeal until Boles III is complete. From the appellate oourt mandate order (PDF file, 4 pages), then:
. . . .[B]ecause the sanctions inquiry now urged “would differ only marginally from an inquiry into the merits,” Cunningham v. Hamilton Cnty., 527 U.S. at 206, the collateral order doctrine does not apply here.
Further, although a final order in this case awaits retrial, that circumstance only delays Douglas’s ability to appeal the sanctions order; it does not render that order unreviewable. Whenever and however a final judgment is entered, “an attorney may appeal a decision where the district court imposes a tangible sanction or makes an express finding that a lawyer has committed specific acts of professional misconduct.” Keach v. County of Schenectady, 593 F.3d 218, 226 (2d Cir. 2010). . . .
For the foregoing reasons, the appeal is dismissed for lack of appellate jurisdiction. . . .
Now we wait until later in 2012, for the retrial of the damages award portion of the Boles II verdict — also to a jury — but this time to an entirely new jury.