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In re Fosamax Products Liability Litigation

October 4, 2010


The opinion of the court was delivered by: John F. Keenan, United States District Judge



On July 7, 2010, Gary Douglas, Esq., of Douglas & London, P.C., 111 John Street, 14th Floor, New York, New York 10038, who was trial counsel for Shirley Boles in this case, was ORDERED TO SHOW CAUSE as to why he should not be sanctioned under the inherent power of the Court to conduct its business and affairs fairly and without improper behavior by counsel and why his conduct should not be referred to the Grievance Committee of this Court.

The matter was heard on September 9, 2010 and Mr. Douglas, through his counsel, argued that he should neither be sanctioned nor should his conduct be referred to the Grievance Committee of the United States District Court for the Southern District of New York.

Mr. Douglas has submitted a declaration in response to the Order To Show Cause on August 16, 2010, together with several exhibits supporting his opposition. They include a declaration on his behalf from Richard Godosky, Esq., a letter from his co-counsel, Joyce London, Esq., a declaration by Timothy M. O'Brien, Esq., letters from some fourteen lawyers who know Mr. Douglas personally and professionally, and various other documents and submissions.

The Order To Show Cause cites nine separate areas where the Court directed Mr. Douglas to explain "why he should not be sanctioned and/or referred to the Grievance Committee." They are essentially as follows:

(1) "referencing the trial of Maley v. Merck, 06 Civ. 04110 (JFK) before the jury (Trial Tr. at 984:13-986:10) despite explicit instructions not to make reference to other cases in this multi-district litigation (Id. at 230:2-11; Aug. 11, 2009 Tr. at 83)";

(2) "misstating during summation the date of the 'Mucci Report'";

(3) "attacking the FDA during summation for the manner in which it is funded" and characterizing the FDA "as having an 'incestuous' relationship with pharmaceutical companies";

(4) "criticizing the ability of the FDA to regulate drug safety without a proper foundation in evidence," comparing it "to the Government's response to Hurricane Katrina";

(5) "injecting the issue of punitive damages into the trial - despite the fact that the Court had already dismissed the punitive aspect of the case on summary judgment - by arguing that Plaintiff should receive a damages award 'to say something to Merck' (Aug. 5, 2009 Op. & Order at 41; Trial Tr. at 1664:3-7, 1674:8-10, 1678:7-11, 1683-84, 1704:10-13, 1710-11)";

(6) "improperly injecting his own opinion concerning the evidence into his summation";

(7) "improperly making reference to adverse event reports";

(8) "using a demonstrative containing the single word 'hypocrisy' in describing the conduct of the defendant and defense counsel";

(9) "repeatedly disparaging defense witnesses and generally acting rudely to defense counsel... using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing... 'fooling around' and 'making fun' (E.g., id. at 1668:1-1669:1-2, 1677:13-21, 1714:7-9)".


This case is one of several bellwether cases in this multi-district litigation which now consists of over 800 different lawsuits by individual plaintiffs filed against Merck. The trial of this case commenced on June 8, 2010 and ended with a jury verdict for the plaintiff on June 23, 2010. Timothy M. O'Brien, Esq., Pensacola, Florida, and Mr. Douglas were the principal counsel for the plaintiff during the trial.

A previous trial of the case ("Boles I"), which was held in August-September, 2009, resulted in a hung jury.

This second Boles trial was an unusually confrontational and hard-fought case in which emotions were plainly visible on both sides. The papers submitted by Mr. Douglas demonstrate that he is an experienced trial lawyer and has tried at least fifty cases "to full verdict." He believes that while his "style may, at times, be demonstrative or dramatic, it is effective and within the bounds of the law and accepted advocacy." (Douglas Decl. ¶ 8.)

In response to Point 1 above, the Douglas Declaration disingenuously states:

I believed that in this re-trial of the Boles case, the Court did not want any party to refer to the fact that there had been a first and prior trial involving the same parties, Shirley Boles and Merck. Nor is there any mention of any cases other than the Boles case in the ruling cited by the Court. (Douglas Decl. ¶ 29.) (emphasis in original)

In a letter on this subject which the Court received on September 21, 2010, his counsel, Michael S. Ross, Esq., urged that Mr. Douglas "simply did not have notice" that there was a prohibition against reference to other Fosamax cases by name. (Sept. 20, 2010 Letter from Michael S. Ross at 4-5.)

In his declaration, Mr. Douglas states twice that he had no "actual notice" of a directive by the Court not to mention or refer to other cases in this multi-district litigation. (Douglas Decl. ¶ 31.) However, Mr. O'Brien's declaration states that Mr. Douglas read the entire transcript of the record in Boles I. (O'Brien Decl. ¶ 4.) If so, he did have ...

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