Commercial Litigation and Arbitration

Inherent Power Sanctions for Improper Final Argument

From In re Fosamax Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 105769 (S.D.N.Y. Oct. 4, 2010):

The quoted passages from Mr. Douglas' summation demonstrated that he was arguing punitive damages and because of the Court's August 5, 2009 Opinion, he had ample notice that exemplary or punitive damages were not before the jury. Mr. Ross' argument that Mr. Douglas did not have "notice" that he was violating the rules does not hold water. *** He knew full well, as an experienced trial attorney, that he was way off limits. To urge otherwise, as Mr. Ross argues and Mr. Godosky seeks to do in his declaration, *** does not conform to reality. Mr. Douglas wanted the jury "to say something to Merck" and that meant to punish them. With 50 trials to verdict under his belt, Mr. Douglas knew better. To allow this type of argument and conduct in violation of the August 5, 2009 Opinion would be to countenance disorder in my Courtroom, undermine the rule of law, and reward misbehavior. This was a trial, not a political campaign, and lawyers are supposed to follow rules. He will be sanctioned for his conduct during summation. ***

Mr. Douglas is sanctioned and directed to pay the sum of $2,500 to the Clerk of the United States District Court for the Southern District of New York for his non-compliance with my ruling on the punitive damages issue ***. This relatively light sanction takes into account the fourteen letters submitted by lawyers on his behalf, several of whom were Mr. Douglas' adversaries in prior litigation. It is sufficient, but no greater than necessary, to reflect the seriousness of his conduct and it will promote his respect for the legal process.

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