Thursday’s action in the New Jersey cases currently being tried against Merck.
Discovery Order
I was talking with some lawyers lately about an increasing problem of discovery abuse, particularly during depositions. Apparently some lawyers don’t understand the rules or, if they do, they don’t care about them.
Here is an interesting Order entered in a case that put the hammer down on a lawyer who the Court determined had not acted appropriately during depositions. Download file
Do you have any Orders you would like to share? Trial judges need to know that other trial judges have taken aggressive action to stop what they have determined to be inappropriate conduct and the best way to demonstrate that is a copy of an order. If you have such orders, fax or email them to me and I will post them so that other lawyers may utilize them.
Lanier v. Merck, Round 2, Post 4
You know the drill by now – here is an article reflecting what happened yesterday.
An excerpt: “They also got to watch a movie: ”V Squad,” a campy, 12-minute sales-training video played in court, which showed two Merck salespeople dressed as superheroes — each in a black suit, with an orange ”V” on the chest — fending off human ”obstacles” who represented questions from doctors to whom the company pitched its blockbuster arthritis drug.”
A Work of Art
I confess to being somewhat of a law geek. After almost 25 years of practice, I still enjoy reading opinions and getting my head in the books. I readily confess to not doing much legal writing in my practice anymore – I have several bright young lawyers who help with that part of preparing a case for trial. But I still love to read opinions, and still get a real thrill out of an extraordinarily well-written opinion.
This is one. It is written by Judge William Bedsworth on the California Court of Appeals. The opinion involves a probation revocation hearing; the defendant lost and got sent to prison for seven years. To get a feel for the opinion, consider this, the first paragraph of the opinion: “Occasionally, we see a case that “fell through a crack.” This case fell through a chasm. And no one, not the trial attorney, not the prosecutor, not the court – and certainly not the probation officer – can escape some degree of responsibility for the existence of that chasm. When the issue is whether a defendant goes to prison for seven years or to a drug rehabilitation program, someone should be paying attention. In this case, it appears no one but the defendant really was.”
This is the last paragraph of the opinion: “Finally, we must emphasize that if this case is not an utter anomaly, it is a
frightening example of what can occur when all the participants forget how high the stakes are in a probation revocation hearing. We have no problem concluding Gayton’s counsel had the primary obligation to review and present the evidence that might have assisted his cause. But prosecutors always bear some responsibility for the evidence they offer. And when it became clear during the hearing that the facts were so hotly contested, and that the probation officer had neither brought the file nor reviewed it in the last three months, it was perhaps incumbent upon the court to consider issuing an order to produce the file on its own motion. In short, it must be remembered that everyone in this case had a stake in getting at the truth: All failed.”
Lanier v. Merck, Round 2, Post 3
Here is an article that describes the events of the second trial day (after the completion of jury selection) in the two Vioxx trials currently underway in state court in New Jersey.
New Wrongful Birth Decision
The Ohio Supreme Court has released a decision in a wrongful birth case. Read about it our medical malpractice blog.
Defamation Case Re-instated
Plaintiff Stanton’s photograph was placed alongside a article entitled “The Mating Habits of the Suburban High School Teenager” that ran in Boston magazine. The opinion describes the photograph this way: “[Stanton’s] is one of five young people pictured in a photograph that occupies the entire first page of the article and half of the facing page. The photograph, taken at a high school dance, depicts its three male and two female subjects in formal attire, sitting and standing near an open exit door in the background. Stanton’s image occupies most of the left-hand side of the photograph, where she appears standing, with her face and most of her body fully visible. Although three of the subjects are smoking cigarettes, and another holds a plastic cup, Stanton simply looks at the camera, smiling faintly.” The article talked about the level of sexual activity among high schoolers, etc. Stanton sued, saying that she was defamed.
The First Circuit Court of Appeals reversed dismissal of the case, stating that the article “would tend to hold [her] up to scorn, hatred, ridicule or contempt, in the minds of [a] considerable and respectable segment in the community. A reasonable reader could believe that Stanton, who appears in the lead illustration for the article, is in fact one of the teens whose promiscuous behavior is described in its text.
Metro concedes for purposes of this appeal that “a statement that [Stanton] was ‘promiscuous’ might damage her reputation in the community.” Accordingly, we need not decide whether a false accusation of promiscuousness is defamatory. At the risk of repeating ourselves, we allow that other reasonable readers may take a different view. We conclude only that the article is susceptible to the defamatory meaning Stanton alleges, i.e., that she engages in sexually promiscuous conduct.” [Citations and internal quotation marks omitted.]
The Press Starts to Understand Tort Reform
Tort reform swept through Georgia in 2005, and now the harm and the potential for harm is beginning to be felt. This article from Atlanta’s leading newspaper explains the consquences of the offer of judgment rule.
I hasten to note that the Tennessean has editorialized against tort reform for years.
Thanks to Ken Shigley from telling us about this article.
Lanier v. Merck, Round 2, Post 2
Here is a summary of the opening statements in the Vioxx trial currently underway in New Jersey.
Wouldn’t this Ruin Your Day?
How would you like to receive this Order in the mail? Download file
Worse yet, how would you like to see it on the Internet?