Originally published on Law.com, an ALM Media publication, on May 5, 2017.
By: Amanda Bronstad
Johnson & Johnson, hoping to reverse a $502 million verdict, is accusing plaintiffs attorney W. Mark Lanier of lying to a federal judge and jury about payments he made to two expert witnesses in a pivotal hip implant trial last year in Dallas.
The allegations against the Houston lawyer surfaced in documents unsealed this week by the U.S. Court of Appeals for the Fifth Circuit, which is hearing Johnson & Johnson subsidiary DePuy Orthopaedics Inc.’s appeal of the verdict. In an April 18 appeal brief, Johnson & Johnson lawyers Paul Clement and John Beisner said a “strange thing happened” when they started deposing the experts for a subsequent trial: The plaintiffs turned over checks written out to the experts, both of whom Lanier had insisted were not compensated for their testimony.
“Plaintiffs’ concealment of the fact that two critical expert witnesses had been paid or expected to be paid—at the same time their volunteer status was trumpeted to the jury and used to evade the expert-report requirement—deprived defendants of their ability to fully and fairly defend themselves,” they wrote.
The revelations, the lawyers argue, warrant a new trial and could undermine “the reliability of the entire bellwether process.”
Clement, a former U.S. solicitor general, is a highly regarded appellate lawyer and partner at Kirkland & Ellis in Washington, D.C; Beisner, who heads the mass torts, insurance and consumer litigation group at Skadden, Arps, Slate, Meagher & Flom in New York, is national litigation counsel to Johnson & Johnson.
They claim Lanier donated $10,000 to one expert’s grade school, followed by a $35,000 check for his services. A second expert, they wrote, allegedly admitted that he had expected to be paid from the start; once the trial ended, Lanier cut him a check for $30,000.
In an email, Lanier called the allegations “laughable if it weren’t so sad.”
“Everything I SAID WAS 100% ACCURATE AND TRUTHFUL,” he wrote. “J&J paints a one-sided version, fails to tell the whole story, and leaves a false impression.”
Lanier added: “This brief is what the underlying case was full of: J&J intimidating and disparaging anyone who dares to stands in their way and seek to hold them accountable.”
Lanier’s response in the Fifth Circuit is due May 17.
“There was no agreement”
On Dec. 9, a district judge in Dallas rejected
Johnson & Johnson’s motion for new trial
based on the same allegations. In that order, which also was unsealed this week, U.S. District Judge Edward Kinkeade of the Northern District of Texas found no evidence of fraud.
“The evidence before the court tends to show that at the time of trial there was no agreement for compensation between plaintiffs’ counsel and the [experts],” the judge wrote. The defendants also ignored the fact that their own experts received “far larger payments” for their testimonies. “Defendants have not shown how evidence of plaintiffs’ experts receiving a fraction of the compensation of defendants’ experts would have produced a different result at trial.”
The $502 million verdict in March 2016 was followed by a $1.04 billion
verdict on Dec. 1, 2016 in the second and third bellwether trials in multidistrict litigation over DePuy’s Pinnacle hip implants. (The $1 billion verdict was later cut to $540 million
.) More than 9,000 lawsuits have been filed alleging the devices caused pain and subsequent removal surgeries. DePuy won the first verdict in 2014.
The Pinnacle is one of several mass torts
that resulted in substantial verdicts against Johnson & Johnson in 2016.
The verdict challenged by Clement and Beisner awarded five plaintiffs and three of their spouses. The jury found DePuy had failed to warn that its hip implant was defectively designed and that Johnson & Johnson aided and abetted DePuy’s actions.
DePuy has filed two appeals of the judgment. One, backed by the U.S. Chamber of Commerce in an amicus brief, challenges the “inflammatory rhetoric” at trial and a host of other “legal flaws.” The other involves the expert payments.
In that appeal, Johnson & Johnson’s lawyers wrote that Lanier’s misrepresentations about both experts, Drs. Bernard Morrey and Matthew Morrey, put him at an unfair advantage at trial. The unpaid status of his experts, who are father and son, were a central theme at trial, often contrasted with the “bought testimony” of the defense witnesses, they wrote. By insisting they were unpaid, Lanier ensured that DePuy would not have an opportunity to review expert reports prior to trial, they wrote.
They also cite Lanier’s letters to both experts a month after trial in which he noted that their testimonies “made a real difference to the jury” and felt it was unfair that they hadn’t gotten paid. The letters accompanied the two checks. Both witnesses ended up being designated as paid experts in the third bellwether trial.
But Lanier wrote there was never any financial arrangement with the experts during the trial, and neither expected to get paid by plaintiffs’ attorneys, according to his response
to DePuy’s original motion. Once the second trial ended, both got checks after Lanier had a “change of heart.”
“Only by creative interpretation, omission, and outright misrepresentation are defendants able to suggest an improper arrangement that never existed,” he wrote.
Amanda Bronstad covers mass torts and class actions for ALM. Contact her at firstname.lastname@example.org. On Twitter: @abronstadlaw