Legal Briefing: Did Sexist Closing Hurt Novartis in Discrimination Case?

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Novartis Faces $250 Million in Punitive Damages

The jury that found Novartis Pharmaceuticals (NVS) guilty of sex discrimination returned a verdict on Wednesday of $250 million in punitive damages, on top of what plaintiffs' attorneys estimate could be nearly $1 billion in compensatory damages, according to Bloomberg. Many have wondered why Novartis took the case to trial instead of settling as is more typical. One theory was: Novartis' annual revenues dwarf the verdict, so why not?

The Am Law Litigation Daily's Susan Beck has another theory, one that underscores what the plaintiffs were talking about: Novartis and its lawyers just didn't get it. The defense's closing argument was laced with sexist stereotypes and must have left jurors with the impression that the company really didn't respect women.

Beck cites portions of the statement where the defense tries to discredit the 12 women who testified about discrimination, ranging from being discouraged from having children, being pressured to have an abortion, and being punished for reporting a rape -- in addition to groping, sexual comments, and other sexist behavior. How did the defense go after these witnesses' credibility? By portraying them as "overly emotional, lying, hysterical women."

In support of that critique, Beck includes these choice quotes from Vedder Price partner Richard Schnadig's closing argument: "I've never seen anybody cry so much on the witness stand in my life.... She didn't have very much to cry about.... It's like she had been knifed. Honestly. What was wrong with this woman? She was so fragile."

That woman was "a troubled person" among several "troubled, troubled" witnesses, including another who was a "troubled" liar, whose testimony was "highly emotional" and "ridiculous." Schnadig described another witness as "that little blond that came up here from Texas."

Beck's piece has a link to a Word document of the closing argument. Of all the derogatory comments she cites (Beck has more in her article), I think the "little blond that came up here from Texas" was most damning because it's so gratuitously demeaning, doesn't apply to the women's credibility or serve any other substantive purpose. What exactly was he trying to convey about the witness' testimony with that characterization?

In fairness to Mr. Schnadig, his job in the closing, in part, was to discredit the plaintiff witnesses. In his argument, he does it in unobjectionable ways at times, such as highlighting contradictory testimony, emphasizing favorable defense witnesses and the like. But Beck's right in that the overall tone is just so condescending to the women it's hard to imagine Schnadig had a clue how it would come off.

And in the Business of Law...

Corporate Counsel named its best in-house legal departments of the year, crowning Microsoft (MSFT) No. 1. The other finalists were Discover (DFS), Hewlett Packard (HPQ), and Williams. In making its picks, the magazine examined "litigation achievements,...outside counsel management, pro bono programs, staff diversity, quality of life, and technological innovation."

Zuckerman Spader was awarded the D.C. bar's big firm pro bono award, reports the Blog of the Legal Times. The firm sharply increased its pro bono hours, got a criminal defendant's sentence reduced and won asylum for a Rwandan genocide survivor, who's now a university student.
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