Sanctions for improper comments before the jury and conduct during trial

Last month a jury awarded $8 million in compensatory damages (see here) in a case against pharmaceutical company Merck in a trial related to injuries caused by its prescription drug Fosamax.

Today, Pharmalot is reporting that the plaintiff's attorney is facing sanctions for his behavior during the trial and certain comments during closing arguments. The court's order imposing the sanctions is availble here.

The order states that “[d]uring the trial of this hard fought case, Mr. Douglas repeatedly acted in an inappropriate manner before the jury and made several improper and/or factually incorrect arguments in summation after having been admonished.” Among other things, the order states that the attorney claimed the FDA has an “incestuous” relationship with drugmakers and offers cursory reviews and expedited approvals “in exchange” for funding, a reference to the user fees industry pays the agency.

Quite frankly, I don't have much of a problem with that statement.

But the story does not end there. There were other, more important, problems such as the fact that, according the the report, the attorney "misstated a report submitted as evidence by Merck; mentioned punitive damages when he wasn’t supposed to do so; improperly injected his own opinion concerning the evidence and improperly referred to adverse event reports." Some of these are clearly violations of duties in ABA Model Rule 3.4.

In addition, the order states that the attorney engaged in improper conduct for “repeatedly disparaging defense witnesses and generally acting rudely to defense counsel in a manner that cannot be fully captured in the record: using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing, and admittedly ‘fooling around’ and ‘making fun.’”