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J&J says expert payments doom $151 million hip implant verdict
May 4, 2017 | Reuters Westlaw
By Nate Raymond
Johnson & Johnson is urging an appeals court to overturn a $151 verdict in favor of five plaintiffs who blamed injuries on its Pinnacle hip implants, saying their lawyer falsely told jurors that two doctors were not compensated to testify as experts. -
Elite Plaintiffs Lawyer Accused of Concealing Payments to Expert Witnesses
May 4, 2017 | Texas Lawyer
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. -
J&J Asks 5th Circ. To Toss $151M Hip Verdict Over Expert Pay
May 3, 2017 | Law360
By Jess Krochtengel
Johnson & Johnson and its DePuy Orthopaedics Inc. unit told the Fifth Circuit in a brief unsealed this week they’re entitled to a new trial in a hip implant bellwether that ended in a $151 million judgment against the company, claiming the plaintiffs lied about paying their expert witnesses. -
J&J wants $150M verdict nixed, says plaintiffs misrepresented that experts weren’t compensated
May 4, 2017 | SE Texas Record
By David Yates
Earlier this year, DePuy Orthopaedics and Johnson & Johnson appealed a trial court decision that would have them pay out $150 million in damages to five plaintiffs.
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J&J says expert payments doom $151 million hip implant verdict
May 4, 2017 | Reuters Westlaw
By Nate Raymond
Johnson & Johnson is urging an appeals court to overturn a $151 verdict in favor of five plaintiffs who blamed injuries on its Pinnacle hip implants, saying their lawyer falsely told jurors that two doctors were not compensated to testify as experts.
The allegations were made in papers J&J filed with the 5th U.S. Circuit Court of Appeals in New Orleans following the second trial in litigation involving more than 9,000 plaintiffs suing over a metal-on-metal implant made by J&J unit DePuy Orthopaedics.
The brief, filed under seal last month, was unsealed by the 5th Circuit on Monday. The verdict J&J is challenging came in a bellwether trial, a test case parties use to gauge the value of similar claims in mass litigation.
At trial, a federal jury in Dallas awarded five plaintiffs $502 million in March 2016. A judge in July reduced the award to $151 million.
J&J's brief centered on statements Mark Lanier, a prominent Texas lawyer representing the plaintiffs, made to jurors that two expert witnesses, Dr. Bernard Morrey and his son Matthew Morrey, were not being compensated.
Lanier at trial said the Morreys came "here to testify because of concern over what's being claimed in this case." He contrasted them to J&J's paid experts, the company said.
Only later, as J&J prepared for a third trial, did the company learn Lanier had made payments to both doctors, the brief said.
According to J&J, Lanier sent post-trial letters to both Morreys enclosing checks for $35,000 and $30,000 in which he said it was "unfair" for them to have incurred personal costs for testifying.
During later depositions, Bernard Morrey revealed Lanier had also agreed before trial to donate $10,000 to the charity of his choice, while Matthew Morrey said that he expected all along to be paid.
"Plaintiffs obtained an unfair advantage at trial by falsely telling the court and the jury that two of their key expert witnesses were not being compensated for their work on the case," J&J said.
In an email on Thursday, Lanier defended what he said at trial as truthful and said J&J was trying to "embarrass or intimidate me."
He said he only sent Bernard Morrey a check after it became clear J&J would not settle, requiring more trials, as he "felt bad imposing on the doctor when he was doing it for free."
"This would be laughable if it weren't so sad," Lanier wrote.
The case is In re DePuy Orthopaedics Inc Pinnacle Hip Implant Product Liability Litigation, 5th U.S. Circuit Court of Appeals, No. 16-11051.
For plaintiffs: Mark Lanier and Arthur Miller of the Lanier Law Firm, Richard Arsenault of Neblett Beard & Arsenault, Wayne Fisher of Fisher Boyd Johnson & Huguenard, Jayne Conroy of Simmons Hanly Conroy and Kenneth Starr.
For J&J: John Beisner of Skadden Arps Slate Meagher & Flom; Paul Clement, Jeffrey Harris, Michael Lieberman and Kevin Neylan of Kirkland & Ellis and Michael Powell of Locke Lord
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Elite Plaintiffs Lawyer Accused of Concealing Payments to Expert Witnesses
May 4, 2017 | Texas Lawyer
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 a 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, Kinkeade said. “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,” he said.
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 case 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, was a central theme at trial, and 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 before 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.
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J&J Asks 5th Circ. To Toss $151M Hip Verdict Over Expert Pay
May 3, 2017 | Law360
By Jess Krochtengel
Johnson & Johnson and its DePuy Orthopaedics Inc. unit told the Fifth Circuit in a brief unsealed this week they’re entitled to a new trial in a hip implant bellwether that ended in a $151 million judgment against the company, claiming the plaintiffs lied about paying their expert witnesses.
The companies, which have separately appealed the judgment, are also appealing U.S. District Judge Ed Kinkeade’s decision to deny their motion for a new trial in the second of three bellwether trials involving its Pinnacle Ultamet line of metal-on-metal hip implants. J&J and DePuy say that throughout the second trial, the plaintiffs represented that expert witnesses were volunteering their time because of concern for the plaintiffs, but that the witnesses were actually paid.
In their brief, which was filed in April under seal but unsealed by the Fifth Circuit on Monday, the companies say that leading up to the third bellwether trial, the plaintiffs produced checks showing one expert was sent a check for $35,000 after the second trial and a second expert was sent a check for $30,000 after the trial. They say plaintiffs’ counsel Mark Lanier of The Lanier Law Firm also agreed before the second trial to donate $10,000 to a charity chosen by one of the experts.
They say that the “purported volunteer status” of the experts was a central theme in the second trial, and that the plaintiffs emphasized that defense experts were being paid for their opinions. The alleged lies about the experts’ payment constitute fraud and justify relief from the final judgment, the companies argue, citing Federal Rule of Civil Procedure 60(b)(3).
“By misrepresenting the facts about whether those experts had been or would be compensated, plaintiffs’ counsel unfairly imbued them with a false aura of objectivity and credibility, both in the abstract and vis-à-vis the defense experts,” they said in the brief.
J&J and DePuy also claim they were deprived of a meaningful opportunity to prepare for cross-examination of the experts or arrange for their own experts to rebut the plaintiffs’ expert opinions because the plaintiffs took the position that they did not have to produce expert reports because the witnesses were not compensated.
“This would be laughable if it weren’t so sad,” Lanier told Law360 on Wednesday.
Lanier said J&J has previously “excoriated and impugned” the judge in its opening brief and in mandamus filings, and now is trying to do the same to him.
“Everything I said was 100 percent accurate and truthful,” Lanier said. “J&J paints a one-sided version, fails to tell the whole story, and leaves a false impression. The trial judge heard all of this and rejected their complaints immediately.
“This brief is what the underlying case was full of: J&J intimidating and disparaging anyone who dares to stand in their way and seek to hold them accountable. They did it to the doctors that warned them of their defective products, they did it to the scientists that dared to cross them. They lied to regulatory agencies, they admittedly bribed doctors, broke countless laws, they paid their witnesses tens of millions of dollars, had at least one witness lie about his payments on the stand, and all the while, they manufacture this holier than thou attitude.”
According to J&J’s brief, both plaintiffs’ experts received checks after the second trial accompanied by letters that said though neither witness expected compensation, the plaintiffs’ counsel hoped they would accept the money “with our greatest appreciation for what you have done.” And in the third trial, the witness who received the charitable donation testified that Lanier had tried to pay him for time spent discussing the history of metal-on-metal implants, then made the donation after the witness declined payment.
The second trial had ended in a $502 million verdict for five plaintiffs who’d received hip implants, but was reduced to $151 million under a Texas statutory cap on punitive damages. The plaintiffs have argued the damages cap shouldn't have been applied.
A spokesman for J&J did not immediately respond to a request for comment Wednesday.
The patients are represented by W. Mark Lanier and Kevin Parker of The Lanier Law Firm, Wayne Fisher and Justin Presnal of Fisher Boyd Johnson & Huguenard LLP, Richard Arsenault of Neblett Beard & Arsenault, Jayne Conroy and Andrew Bierstein of Simmons Hanly Conroy, and Kenneth W. Starr.
DePuy and Johnson & Johnson are represented by Michael V. Powell of Locke Lord LLP, Stephen J. Harburg, John H. Beisner, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP, Paul D. Clement, Jeffrey M. Harris, Michael D. Lieberman and Kevin M. Neylan Jr. of Kirkland & Ellis LLP, and Richard Sarver and Andrea Mahady Price of Barrasso Usdin Kupperman Freeman & Sarver LLC.
The case is Aoki v. Johnson & Johnson et al., case number 17-10030, in the U.S. Court of Appeals for the Fifth Circuit.
--Editing by Orlando Lorenzo. -
J&J wants $150M verdict nixed, says plaintiffs misrepresented that experts weren’t compensated
May 4, 2017 | SE Texas Record
By David Yates
Earlier this year, DePuy Orthopaedics and Johnson & Johnson appealed a trial court decision that would have them pay out $150 million in damages to five plaintiffs.
While the two companies originally submitted their brief under seal in April, the U.S. Court of Appeals, Fifth Circuit released the filing on May 1.
In their brief, the defendants contend they are entitled to a new trial because the plaintiffs apparently “misrepresented that their expert witness were not compensated,” which “prevented” them from “fully and fairly presenting their case.”
After a lengthy courtroom battle described in appeal documents as “intensely adversarial," a jury found in favor of five plaintiffs who had received DePuy’s Pinnacle hip implant, which uses a metal-on-metal design.
Plaintiffs’ counsel, which includes Houston attorney Mark Lanier, argued the defendants’ re-introduction of metal-on-metal hips traded progress for a known failed technology, causing countless serious, unnecessary health problems.
Jurors originally awarded $502 million in damages, but the amount was brought down to $150 million in accordance with Texas’ statutory cap on exemplary damages.
On appeal, DePuy and Johnson & Johnson maintain that the bellwether trial, which could set the tone for the thousands of other pending cases in the multi-district litigation, was an abject failure.
According to the defendants’ unsealed brief, Lanier had agreed before the trial to donate $10,000 to a charity of their first expert’s choosing, and then sent the expert a check for $35,000 after the trial, despite “repeatedly” telling the jury that their key expert witnesses were “volunteering their time ‘because of concern’ for the plaintiffs.”
“The second expert admitted that he expected to be paid all along—in no small part because Lanier told him ‘don’t worry about’ sending an invoice—and then, sure enough, received a check for $30,000 as soon as the trial was over,” the defendants’ brief states.
“Federal Rule of Civil Procedure 60(b)(3) was designed for precisely such circumstances, providing relief to parties who were unfairly disadvantaged by the opposing party’s misrepresentations or other misconduct.”
DePuy and Johnson & Johnson argue that by misrepresenting the facts about whether the experts had been or would be compensated, Lanier unfairly imbued them with a false aura of objectivity and credibility.
“Moreover, plaintiffs used their misrepresentations to justify their failure to produce expert reports, arguing that both experts were exempt from the report requirement because they were uncompensated,” the brief states.
“Plaintiffs’ misrepresentations thus deprived defendants of a meaningful opportunity to prepare for cross-examination or arrange for their own experts to rebut plaintiffs’ experts’ opinions.”
The appeal arises from the second trial in an MDL proceeding involving the product liability claims of more than 9,000 plaintiffs.
The plaintiffs collectively claim they were injured by debris generated by the implant’s metal-on-metal design.
On May 3, Lanier was named one of seven finalists for the Business Trial Lawyer of the Year award by Chambers USA.
Chambers has not yet responded to a request seeking to know that if the claims made by the defendants are indeed true, would Lanier’s chances of winning be effected.
The defendants are represented in part by Michael Powell, attorney for the Dallas Law Firm Locke Lord, and Paul Clement of the D.C. law firm Kirkland & Ellis.
Cause No. 17-10030
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