Gary Douglas may have beat Merck in an important Fosamax trial last month, but can he beat sanctions for his behavior during closing arguments? The attorney, who helped Shirley Boles win $8 million in compensatory damages (back story here), was chastised in a stinging order by US District Court Judge John Keenan for a variety of alleged shenanigans during his recent summation.
"During 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," Keenan writes in an order. Such as? Douglas 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.
Douglas also criticized the ability of the FDA to regulate drug safety "without a proper foundation in evidence," and compared its alleged shortcomings to the federal government's response to Hurricane Katrina. Keenan was also annoyed that he 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.
Last, but not least, Keenan was angered at Douglas 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.' " Unfortunately, Keenan doesn't mention which song Douglas belted out. Maybe it was 'The Winner Takes It All?'
pic thx to walknboston on flickr