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Cona/McDarby around the blogosphere

Some interesting thoughts on McDarby and Cona elsewhere on the blogosphere:

  • Plaintiffs' attorney Mark, a/k/a "Georgia lawyer," points out that notwithstanding the failure of Mark Lanier's "fiery Texas style" to win his client more than $135 in the Cona case, he is likely to score far more in attorneys' fees under New Jersey's consumer fraud statute. How likely? Well, let's just remember that Judge Carol Higbee is a former medical malpractice and personal injury plaintiffs' lawyer.
  • Speaking of Lanier's style, plaintiffs' lawyer Chris Placitella reports from the courtroom that the Texas preacher closed with an analogy to the TV show Desperate Housewives. In Placitella's view, it was "perhaps one of the most entertaining closings I have ever witnessed." Good thing that the jury, at least in Cona's case, focused more on the facts.
  • Another plaintiffs' lawyer, John Day, opines and asks:
    The finding of consumer fraud is extremely significant. Under the New Jersey Consumer Fraud Act, "the act, use or employment by any person of any unconscionable commercial practice, deception or fraud, false pretense, false promise or misrepresentation, or the knowing concealment, suppression or omission of any material fact with the intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise . . . is declared to be an unlawful practice. . ." Treble damages, attorneys' fees and costs are recoverable damages. First, the fact of the finding is horrible for Merck from a customer relations standpoint. Perhaps more important, however, is that there is a class action pending against Merck on this very subject seeking a recovery of the prescription price of the drug for every buyer in America (and perhaps beyond). The damages in that case are over $10 billion. The intermediate court of appeals in New Jersey recently upheld class certification in that case . . . . Question: is offensive collateral estoppel available to the class action participants because of the jury's finding in this case? I do not know what New Jersey law is on this subject, but if collateral estopp[el] does apply Merck is going to be in a very tough situation.

  • Evan Schaeffer asks, "I often wonder why the Vioxx litigation is being followed so much more closely than other mass torts, including the diet-drug litigation, which began in 1997 and is still continuing. Is it because so many people took Vioxx? Is it because so many people own Merck stock?"



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.