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Traditional Media Coverage

Jury Won't Hear About Allegations of Witness Tampering in High-Stakes Dallas Hip Implant Trial
Nov 14, 2017 | Texas Lawyer
By Brenda Sapino Jeffreys

Jurors in a bellwether hip implant trial in Dallas will not hear testimony about alleged witness tampering in the case. In a ruling issued Monday, U.S. District Judge Ed Kindkeade of the Northern District of Texas told lawyers in the litigation he would not authorize DePuy sales representative Glenn Swajger or Dr. David Shein to testify before the Dallas jury about a conversation the two had just days before Shein was scheduled to testify in the trial
J&J Hip Implant Patients Seek Big Damages From Texas Jury
Nov 14, 2017 | Law360
By Jess Krochtengel

Six New York plaintiffs on Tuesday asked a Texas federal jury to hit Johnson & Johnson with at least a nine-figure punitive damages award to punish the company for allegedly making and marketing a defective line of metal-on-metal hip implants. In closing arguments that wrapped up a two-month bellwether trial, plaintiffs who say they suffered tissue damage and intense pain from negative reactions to the Pinnacle Ultamet line of metal-on-metal hip implants made by J&J's DePuy Orthopaedics Inc. unit asked the jury for "justice." Plaintiffs' counsel Mark Lanier of The Lanier Law Firm asked the jury to punish J&J "for being indifferent to our health," using humans as guinea pigs for an untested product that was pushed to market too soon, and failing to warn surgeons of the risks and problems with the device.
J&J Hip Implant Jury Won't Hear Witness Tampering Claim
Nov 13, 2017 | Law360
By Jess Krochtengel

A Texas federal judge refused Monday to allow jurors in a bellwether hip implant liability trial to hear testimony related to alleged witness tampering stemming from communications between a Drinker Biddle & Reath LLPattorney for defendant Johnson & Johnson and a company sales representative. In a hearing marked by U.S. District Judge Ed Kinkeade threatening to hold the salesman's lawyer in contempt and continued tension between the parties over the tampering allegations, the judge said he hadn’t heard anything indicating the allegedly problematic conversations should be imputed to J&J unit DePuy Orthopaedics Inc. and would not allow the issue to be raised before the jury. His decision came a day before closing argument in the two-month trial in which six plaintiffs who had Pinnacle Ultamet metal-on-metal hip implants allege J&J made a defective product and failed to adequately warn of its risks.
Drinker Biddle Comms Keep Privilege In J&J Tampering Probe
Nov 8, 2017 | Law360
By Jess Krochtengel

Amid an investigation into witness tampering allegations raised in a hip implant product liability trial, a Texas federal judge on Tuesday found no evidence of crime in communications between Johnson & Johnson counsel from Drinker Biddle & Reath LLP and a company sales representative that would defeat the attorney-client privilege applicable to the records. U.S. Magistrate Judge Paul Stickney had been asked to review a series of communications between a DePuy Orthopaedics Inc. sales representative and attorneys for J&J and DePuy that allegedly led the sales representative to tell a doctor who treated several plaintiffs in the trial that testifying could have ramifications for the doctor’s practice.
J&J Unit Hit With Trimmed FCA Suit Over Hip Implants
Oct 31, 2017 | Law360
By Rachel Graf

Johnson & Johnson Services Inc. and its subsidiary DePuy Orthopaedics Inc. have been hit with a revised version of a suit in Massachusetts federal court alleging the companies indirectly submitted false claims to the government for faulty hip replacement devices after the First Circuit partially revived the allegations in July. Whistleblowers Antoni Nargol and David Langton filed the most recent complaint Friday, alleging the companies violated the federal and New York false claims acts by misrepresenting the safety of DePuy’s Pinnacle metal-on-metal device used in hip replacements and ultimately causing the government to buy faulty products.
J&J Calls Witness Tampering Accusation 'Overblown'
Oct 31, 2017 | Law360
By Jess Krochtengel

Johnson & Johnson on Monday told a Texas federal judge that accusations of witness tampering in an ongoing hip implant product liability trial have been “overblown” by plaintiffs’ counsel, who the company said are trying to turn the issue into “an inflammatory and prejudicial sideshow.” Defending its lawyers and a sales representative for J&J’s DePuy Orthopaedics Inc. unit, the company said there’s no reason for the parties or the court to spend more time pursuing an investigation into the details of the alleged witness tampering “where the undisputed evidence from the witness himself is that the events would have no effect on his testimony.” J&J and DePuy said the evidence obtained to date shows there’s no need for further inquiry in connection with the ongoing civil trial while the U.S. attorney’s office continues with a criminal investigation.
Hip Implant Defendants Counter Witness Tampering Claim
Oct 31, 2017 | Texas Lawyer
By Brenda Sapino Jeffreys

In a highly-watched hip implant trial in Dallas, U.S. District Judge Ed Kinkeade of the Northern District of Texas brought in the FBI and the U.S. Attorney’s Office to investigate a witness tampering allegation. On Monday, the defendants filed a response suggesting that the response to the alleged witness tampering has been overblown. Defendants DePuy Orthopaedics and its parent Johnson & Johnson and related companies allege in the response that Dr. David Shein, whose affidavit prompted Kinkeade to order the investigation, told the judge at a hearing on Oct. 16 that he didn’t think his conversation with a DePuy sales rep days before his testimony was a big deal and it would not have affected his testimony.
J&J calls opposing counsel inflammatory, asks for mistrial in Pinnacle hip case
Oct 26, 2017 | Reuters
By Tina Bellon

Johnson & Johnson’s orthopedics unit DePuy has called on a federal judge to toss an ongoing trial over the company’s metal-on-metal hip implants, saying plaintiffs had prejudiced the jury by making inappropriate references to other hip litigation. The request marks the latest conflict in the nearly three-week-old trial over allegations that J&J defectively designed its Pinnacle hip implants and failed to warn of its risks, causing six New York plaintiffs to suffer tissue death, bone erosion and other injuries
Johnson & Johnson lawyers deny tampering allegations in hip case
Oct 25, 2017 | Mass Device
By Brad Perriello

Lawyers for Johnson & Johnson(NYSE:JNJ) in a bellwether trial over metal-on-metal hip implants made by J&J subsidiary DePuy Orthopaedics yesterday denied witness tampering allegations leveled by the lead plaintiff’s attorney. Last week a federal judge in Texas took the unusual step of asking federal prosecutors and the FBI to probe the possible witness tampering. Mark Lanier, lead attorney for the plaintiffs in one of six cases being tried in the U.S. District Court for Northern Texas bellwether before Judge Ed Kinkeade, raised the tampering issue during an Oct. 16 hearing based on a conversation between a DePuy sales rep and a surgeon who’s a witness in the case.
Drinker Biddle Attys Deny Pressuring Doc In Hip Implant Trial
Oct 24, 2017 | Law360
By Jess Krochtengel

Two Drinker Biddle & Reath LLP attorneys whose names were raised as part of an investigation into witness tampering allegations in a bellwether hip implant trial on Tuesday told a Texas federal judge they made only appropriate phone calls to an employee of Johnson & Johnson subsidiary DePuy Orthopaedics Inc., whose conversation with a doctor led to the doctor's planned testimony being cancelled. Plaintiffs raised allegations of witness tampering a month into the fourth bellwether trial in multidistrict litigation including more than 9,000 cases alleging DePuy made and marketed a defective line of metal-on-metal hip implants, referred to as the Pinnacle Ultamet.
Lawyer Denies Witness Tampering in Hip Implant Trial
Oct 24, 2017 | Texas Lawyer
By Brenda Sapino Jeffreys

A lawyer for DePuy Orthopaedics, the defendant in a bellwether hip implant trial in Dallas, said in a motion filed Tuesday that said she did not ask a DePuy sales representative to “do anything or communicate” with a doctor who filed an affidavit suggesting witness tampering. In the motion, filed by Drinker, Biddle & Reath associate Jennifer Brennan and partner Michael Zogby, the DePuy attorneys allege that Brennan made several calls to sales rep Glenn Swajger on Oct. 12 and 13 but she never asked him to do anything other than make himself available for a conference call with the trial team Oct. 13.
Lawyers Lawyer Up as FBI, Prosecutors Are Asked to Investigate Witness Tampering in Hip Implant Trial
Oct 19, 2017 | Texas Lawyer
By Brenda Sapino Jeffreys

The lawyers are lawyering up in the bellwether hip implant trial that now includes allegations of witness tampering. Prominent Dallas criminal defense attorneys with extensive federal court experience have notified the court that they will appear on behalf of DePuy Orthopaedics and two of its outside counsel after a federal judge said he wants the FBI and U.S. Attorney’s office to interview the lawyers and others in connection with the witness tampering allegations.
Feds Says Witness Tampering Allegations In Civil Trial New To Him
Oct 18, 2017 | Texas Lawyer
By Brenda Sapino Jeffreys

Witness tampering allegations are something U.S. District Judge Ed Kinkeade of Dallas has seen a lot in criminal cases, but never before in a civil lawsuit in his court. That may help explain why the Dallas judge took strong action on Oct. 16 and told lawyers in a hip implant bellwether trial that he would have the FBI and the U.S. Attorney’s office question a New York doctor and others about a conversation the doctor had just a few days before he was scheduled to testify at the trial.
High-Stakes Hip Implant Trial Takes Series of Contentious Turns
Oct 18, 2017 | Texas Lawyer
By Amanda Bronstad

With another potentially $1 billion verdict on the line, two heavyweight lawyers—plaintiffs’ counsel W. Mark Lanier and defense lawyer John Beisner—are trading ever-escalating accusations and barbs in court papers in a high-stakes DePuy hip implant trial. Lanier and his team are complaining of improper conduct and frivolous objections, and lawyers for hip implant maker Johnson & Johnson’s DePuy Orthopaedics Inc. have accused plaintiffs’ attorneys of misleading the jurors and springing new evidence on them in a “trial by ambush.”
Tampering allegations in Johnson & Johnson hip case prompt judge to trigger probe
Oct 18, 2017 | Mass Device
By Brad Perriello

A federal judge in Texas this week took the unusual step of asking federal prosecutors and the FBI to probe possible witness tampering by lawyers for Johnson & Johnson (NYSE:JNJ) in a bellwether trial over metal-on-metal hip implants made by J&J subsidiary DePuy Orthopaedics. Mark Lanier, lead attorney for the plaintiffs in one of six cases being tried in the U.S. District Court for Northern Texas bellwether before Judge Ed Kinkeade, raised the tampering issue during an Oct. 16 hearing based on a conversation between a DePuy sales rep and a surgeon who’s a witness in the case.
Judge orders FBI probe in DePuy hip trial over alleged witness tampering
Oct 17, 2017 | Reuters
By Tina Bellon

A federal judge in Dallas on Monday ordered a criminal investigation into alleged witness tampering in the trial of a lawsuit claiming injuries resulted from a defective hip implant made by Johnson & Johnson’s DePuy Orthopaedics unit. Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas is presiding over the fourth test trial in the multidistrict litigation over the company’s metal-on-metal hip implants, which has more than 9,100 cases pending.
Tampering Flap Puts J&J Trial Attys Under Ethics Microscope
Oct 17, 2017 | Law360
By Jess Krochtengel

A Texas federal judge's referral to the U.S. attorney's office of witness tampering allegations in a bellwether trial over Johnson & Johnson hip implants is rare and could carry serious consequences, both inside the case and beyond, for company lawyers accused of indirectly pressuring a doctor for the plaintiffs, legal ethics experts say. At the request of U.S. District Judge Ed Kinkeade, two FBI agents and a federal prosecutor on Monday interviewed a doctor who treated three of the six plaintiffs in the trial, according to a transcript of the day's court proceedings.
Judge to Bring in FBI and US Attorney After Plaintiffs Lawyer Suggests Witness Tampering in Hip Implant Trial (UPDATE)
Oct 16, 2017 | Law.com
By Brenda Sapino Jeffreys

A federal judge said he would bring in the U.S. Attorney’s Office and the FBI to interview witnesses after plaintiffs attorney Mark Lanier raised concerns Monday about possible witness tampering in a hip implant bellwether trial in Dallas. The trial concerns hip implants made by DePuy Orthopaedics Inc., a subsidiary of Johnson & Johnson. “This is a serious matter that requires serious—you know—serious treatment and has serious ramifications,” U.S. District Judge Ed Kinkeade of the Northern District of Texas said during the hearing in his Dallas courtroom.
Johnson & Johnson 'remains committed' in battle against hip implant lawsuits
Oct 10, 2017 | SE Texas Record
By John Sammon

Medicinal-pharmaceutical corporate giant Johnson & Johnson Co. continues to battle more than 8,000 lawsuits made against the company over an allegedly defective hip implant device, and attorneys for the firm insist they are in the right despite continuing setbacks in a case that seems to have no end. John Beisner, attorney for Johnson & Johnson, said the company will continue to battle the barrage of lawsuits until a fair result can be obtained. “The company remains committed to a long-term defense of this matter,” Beisner said in a statement to The SE Texas Record. A fourth trial in the case in a Texas federal court is underway this month in what Bloomberg media company called one of the largest multidistrict proceedings in the federal system.
1st Circuit won't reconsider J&J's DePuy whistleblower case ruling
Sep 27, 2017 | Reuters
By Nate Raymond

A U.S. appeals court on Wednesday refused to reconsider a ruling reviving a lawsuit claiming Johnson & Johnson's DePuy Orthopaedics Inc unit marketed defective hip replacement devices to doctors who then sought government reimbursement. The 1st U.S. Circuit Court of Appeals in Boston denied a petition by DePuy to grant an en banc rehearing after a three-judge panel in July overturned the dismissal of the False Claims Act lawsuit against the company. The ruling came after the Pharmaceutical Research and Manufacturers of America filed a brief supporting DePuy's appeal in which it argued the earlier decision incorrectly relaxed standards that protect companies from "parasitic" lawsuits.
4th Bellwether Over J&J Metal Hip Implants Kicks Off
Sep 20, 2017 | Law360
By Jess Krochtengel

Six plaintiffs on Wednesday told a Texas federal jury that a money-driven Johnson & Johnson pushed a dangerous metal-on-metal hip implant into the world that it knew wouldn’t work well and that was defectively manufactured, in the fourth bellwether trial in multidistrict litigation over the devices. In the fourth matchup between plaintiffs’ lawyer Mark Lanier of The Lanier Law Firm and J&J and its subsidiary DePuy Orthopaedics Inc. over the Pinnacle Ultamet line of metal-on-metal hip implants, six New York plaintiffs and four of their spouses allege that the devices were designed based on problematic research, made with “shoddy equipment,” that DePuy and J&J failed to provide adequate warnings about problems with the safety of the devices and made highly misleading marketing claims about the success of the product. The two most recent trials ended in massive verdicts for California and Texas plaintiffs, and J&J and DePuy defeated claims of wrongdoing in the first bellwether.
5th Circuit denies plaintiffs' petition for en banc rehearing in Pinnacle MDL
Sep 19, 2017 | Reuters
By Tina Bellon

A federal appeals court on Tuesday denied a petition for rehearing filed by a group of plaintiffs in the multidistrict litigation over Johnson & Johnson subsidiary DePuy's Pinnacle hip implants. The petition had targeted an Aug. 31 ruling by the U.S. Court of Appeals for the 5th Circuit, which had denied DePuy a writ of mandamus blocking MDL Judge Ed Kinkeade in Dallas from presiding over a test trial but said the judge had "clearly abused" his discretion by hearing out-of-state cases. A unanimous 5th Circuit panel of Judges Edith Jones, Jerry Smith and Gregg Costa denied the plaintiffs' petition for rehearing as well as a motion to vacate portions of the Aug. 31 ruling critical of Kinkeade. The MDL Kinkeade is overseeing has some 9,300 cases pending. Plaintiffs allege the company's implants were defectively designed, causing tissue death, bone erosion and other injuries.
Texas Judge delays J&J Pinnacle hip implant bellwether trial
Sep 6, 2017 | Mass Device
By Fink Densford

A federal judge in Dallas has delayed a Johnson & Johnson (NYSE:JNJ) subsidiary DePuy Orthopaedics Pinnacle hip implant bellwether trial until later this month, according to a Texas Lawyer report. The delay came after 2 of 3 judges on a Fifth Circuit Court panel refused a petition to halt the trail, but concluded that the judge had committed a “grave error” in allowing certain trials to come before him, according to the report.
Divided 5th Circuit ruling casts doubt over next Pinnacle trial
Sep 5, 2017 | Reuters
By Tina Bellon

A divided federal appeals court denied Johnson & Johnson subsidiary DePuy's petition to halt proceedings in an upcoming trial over the company's Pinnacle hip implants, but also said the district judge "clearly abused" his discretion. DePuy had asked the circuit judges for a writ of mandamus to block Dallas U.S. District Judge Ed Kinkeade from presiding over a trial starting Tuesday. Kinkeade is overseeing a multidistrict litigation over Pinnacle implants that has some 9,300 cases pending. In a 2-1 ruling on Thursday, the U.S. 5th Circuit Court of Appeals said the requirements for the "drastic and extraordinary remedy" of a mandamus were not entirely fulfilled, as DePuy had the option of an ordinary appeal following a verdict in the trial.
5th Circ. Wants Texas Hip Implant Bellwether Axed
Sep 1, 2017 | Law360
By Jess Krochtengel

A Fifth Circuit panel has said a Texas federal judge wrongly held that Johnson & Johnson waived its objections to venue for bellwether trials in multidistrict litigation over allegedly defective hip implants and requested the court cancel a trial set to begin Sept. 5, but stopped short of ordering the judge to do so. A two-judge majority on Thursday found U.S. District Judge Ed Kinkeade reached a “patently erroneous” result and clearly abused his discretion by holding J&J and subsidiary DePuy Orthopaedics Inc. had waived their right to object to his court in Texas conducting trials for plaintiffs from other states. It requested Judge Kinkeade vacate his ruling on waiver and withdraw his order for a Sept. 5 bellwether trial that would include eight plaintiffs from New York who allege DePuy’s Pinnacle Ultamet line of metal-on-metal hip implants caused them serious injuries.
Judge Postpones Hip Implant Bellwether After Panel Cites His 'Grave Error'
Sep 1, 2017 | National Law Journal
By Amanda Bronstad

A Dallas federal judge has delayed a planned Sept. 5 hip implant trial until later this month after a split federal appeals panel requested that he halt the proceedings due to his own "grave error." In a Thursday opinion, two of three judges on a panel of the U.S. Court of Appeals for the Fifth Circuit refused to grant a petition for writ of mandamus filed by DePuy Orthopaedics Inc. to halt the trial. But two of the three also concluded that U.S. District Judge Ed Kinkeade, who is presiding over 9,300 cases alleging DePuy's Pinnacle hip implants are defective, committed a "grave error" in allowing certain trials to take place before him, including the one scheduled this month on behalf of eight New York plaintiffs.
Guest Post – Before the Flood: Fifth Circuit Oral Argument on Writ of Mandamus From Pinnacle Hip Implant MDL
Aug 28, 2017 | Drug and Device Law Blog
By Curtis Waldo

The writ has been covered by this blog here and here. In sum, there are two issues before the court: (1) did the district court err in holding defendants waived their personal jurisdiction rights?, and (2) if the district court did err, is it the kind of error that warrants the “extraordinary remedy” of a writ of mandamus? The oral argument was divided about 50-50 between these two questions. Defendants argue they did not waive their personal jurisdiction rights; plaintiffs argue they did. Defendants argue a writ of mandamus is appropriate; plaintiffs argue it is not. The panel was comprised of Judges Jerry Smith, Edith Jones, and Gregg Costa.
It’s All in the Draw: Ken Starr Tangles with Judge Edith Jones in J&J Hip Implant Mandamus
Aug 25, 2017 | Texas Lawbook
By Mark Curriden

Appellate law experts widely agree that they can predict how many cases will be decided at the U.S. Court of Appeals for the Fifth Circuit when the panel of three judges are announced. Several seasoned appellate lawyers say Thursday’s writ of mandamus hearing regarding the hip implant litigation involving Johnson & Johnson’s DePuy Orthopaedics maybe the perfect example. Plaintiffs’ lawyers battling J&J in a multidistrict litigation received what appeared to be a pair of openly hostile judges who seemed ready to take the extraordinary step of stopping U.S. District Judge Ed Kinkeade of Dallas from moving forward with more bellwether trials, including one trial that is scheduled to start in two weeks.
Oral Argument before the Fifth Circuit Starts in a Couple of Hours on the Writ of Mandamus Filed in the Pinnacle Hip Implant Litigation
Aug 24, 2017 | Drug & Device Law Blog
By John Sullivan

As we publish this post, lawyers in the Pinnacle Hip Implant MDL are gathering in the Bob Casey Courthouse in Houston or in coffee shops, breakfast cafés or law offices nearby awaiting the argument to come. At 10:00 a.m., the arguing starts. The Fifth Circuit will officially begin to consider whether to issue a writ of mandamus telling the Pinnacle Hip Implant MDL Court in Dallas that it cannot exercise personal jurisdiction over the upcoming September bellwether trial involving eight New York plaintiffs. The Fifth Circuit will tackle the substance of the appeal—did defendants waive their personal jurisdiction defense as to those eight cases and, in fact, as to all cases in the MDL when they gave a waiver in connection with the first two bellwether trials? Maybe more important, the Fifth Circuit will tackle procedure—are these the type of rare circumstances that require it to issues a writ of mandamus?
Johnson & Johnson seeks to have federal judge banned from bellwether trial
Aug 18, 2017 | Southeast Texas Record
By Glenn Minnis

Johnson & Johnson has petitioned the U.S. 5th Circuit Court of Appeals to remove a federal court judge from adjudicating over a fourth bellwether trial stemming from a dispute involving metal-on-metal hip implants that have already cost the company nearly $1 billion in judgment payouts. In its filing, Johnson & Johnson and its DePuy Orthopaedics unit argue that U.S. District Judge Ed Kinkeade only has legal authority and jurisdiction to preside over pretrial proceedings related to multidistrict litigation in Texas involving local residents.
J&J Urges Halt to Hip Implant Trials in Dallas
Aug 17, 2017 | Texas Lawyer
By Amanda Bronstad

After losing hip implant verdicts of $502 million and $1.04 billion, it's no surprise that Johnson & Johnson's DePuy Orthopaedics Inc. doesn't want to go to trial again next month. But what it does want is a bit unusual. In court filings this month, Johnson & Johnson attorney John Beisner has sought to halt a Sept. 5 trial, but he also wants to remand more than 9,300 of the products liability cases pending in Dallas over DePuy's Pinnacle device back to the courts from whence they came. In a petition for writ of mandamus, Beisner, a Washington, D.C., partner at New York's Skadden, Arps, Slate, Meagher & Flom, has asked the U.S. Court of Appeals for the Fifth Circuit to halt the upcoming trial of eight plaintiffs, all from New York, scheduled to take place before U.S. District Judge Ed Kinkeade. He's raising the same argument in prior writ petitions and in the pending appeals of the two prior verdicts: The cases don't belong in Kinkeade's courtroom.
Personal Jurisdiction Moves Front and Center in the Pinnacle Hip Implant MDL
Aug 8, 2017 | Drug & Device Law Blog
By John Sullivan

Posts on personal jurisdiction, or the lack of it, have been all over this blog ever since the Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court. Something similar happened three years ago after the Supreme Court decided Daimler AG v. Bauman. Together, these two decisions establish that federal courts are not empowered to find a reason to assert personal jurisdiction simply because the defendant is a large company doing business nationally. General jurisdiction requires the state in which the federal court sits to be the defendant’s “home,” meaning that it was incorporated there or has its principle place of business there. Specific jurisdiction requires that the very transaction from which the plaintiff’s claims arose involve the state in which the federal court sits. Otherwise, the court should dismiss the case. These decisions hold the promise of virtually eliminating litigation tourism.
J&J, DePuy Fight Hip Implant Claims Ahead Of 4th Bellwether
Aug 2, 2017 | Law360
By Michelle Casady

Staring down a fourth bellwether trial over its Pinnacle Ultamet line of metal-on-metal hip implants, Johnson & Johnson on Tuesday told a Texas federal judge it can't be held liable for products made by subsidiary DePuy Orthopaedics. The company and its DePuy Orthopaedics Inc. unit argued for an early win in five separate motions for summary judgment filed Tuesday. DePuy told the court that though the seven plaintiffs for the bellwether are from New York, New Jersey and Indiana law should apply because those are the home states of the defendant companies.
J&J Wants 5th Circ. To Block Fourth Hip Implant Bellwether
Jul 26, 2017 | Law360
By Jess Krochtengel

Johnson & Johnson on Tuesday asked the Fifth Circuit to block a Texas federal judge from presiding over a fourth bellwether trial involving metal-on-metal hip implants, arguing the Texas court has jurisdiction only over pretrial proceedings as part of multidistrict litigation. The company and its DePuy Orthopaedics Inc. unit are trying to block a Sept. 5 trial before U.S. District Judge Ed Kinkeade involving nine New York plaintiffs, arguing the MDL court doesn’t have jurisdiction to conduct another trial involving non-Texas residents and it faces “irremediable injury” if the fourth trial moves forward as scheduled.

Traditional Media Coverage

Jury Won't Hear About Allegations of Witness Tampering in High-Stakes Dallas Hip Implant Trial

Nov 14, 2017 | Texas Lawyer

By Brenda Sapino Jeffreys

Jurors in a bellwether hip implant trial in Dallas will not hear testimony about alleged witness tampering in the case.
In a ruling issued Monday, U.S. District Judge Ed Kindkeade of the Northern District of Texas told lawyers in the litigation he would not authorize DePuy sales representative Glenn Swajger or Dr. David Shein to testify before the Dallas jury about a conversation the two had just days before Shein was scheduled to testify in the trial.
The ruling came after Kinkeade questioned a lawyer for defendant DePuy Orthopaedics as well as the company sales representative outside the presence of the jury.
“I haven’t heard anything that says this should be imputed to DePuy, and so I think under that, I’m not going to let it come in either from Shein or from him [Swajger],” Kinkeade told the lawyers in the case.
The conversation between Shein and Swajger became an issue after plaintiffs attorney Mark Lanier raised concerns on Oct. 16 about possible witness tampering. In an affidavit filed on Oct. 15, Shein, a New York doctor who treated some of the plaintiffs in the bellwether trial, said Swajger complained to him during a conversation on Oct. 13 that the lawyers were “on him like crazy” and putting “big time pressure” on him, and that “there could be ramifications” for the doctor’s practice in connection with his upcoming Dallas testimony.
At that time, Kinkeade said the information in the affidavit was “disturbing and disconcerting” and he said he would bring in the U.S. Attorney’s office and the FBI to interview witnesses.
Swajger met with the U.S. Attorney’s Office before testifying in court, according to a transcript of the hearing.
Bill Mateja, a Polsinelli shareholder who represents Drinker Biddle & Reath associate Jennifer Brennan and partner Michael Zogby in connection with the witness tampering investigation, said in a statement that his clients knew all along there was no evidence of witness tampering on their part and they are not surprised by the judge’s ruling.
“We’re pleased with the court’s ruling and today’s testimony, which clearly established that neither Drinker Biddle, Jessica Brennan nor Mike Zogby ever requested the DePuy representative to even speak with Dr. Shein, let alone try to influence him in any way,” he wrote.
Lanier, founder of Lanier Law Firm of Houston, said he is glad the judge concluded that the matter should not go to the jury. “That is the right call,” he wrote in an email.” My hope is that it will inhibit DePuy from tampering in the future.”
Lanier also said the suggestion from defense counsel that he could be a witness in connection with Shein’s affidavit was “simply harassment.” Lanier said that once he heard from Shein that he was told his practice would be harmed by his testimony, he stopped meeting with the doctor and filed the affidavit.
“The testimony made it clear that this wasn’t something I ginned up. I happened. I did the right thing reporting it. I’m glad the court clarified that,” he said.
A member of DePuy’s defense team in the hip implant litigation, John Beisner, a partner at Skadden Arps Slate Meather & Flom in Washington, D.C., said in a statement that the company has been cleared of any wrongdoing in the matter.
“The Court’s finding vindicates our position that the company has acted appropriately towards all witnesses involved in this litigation,” he stated. “The Court’s finding shows that opposing counsel’s allegations—particularly the suggestions of criminal wrongdoing— were an unfair and unfounded attack on the integrity of the company and its legal team. We are glad to now have this matter behind us.”
Kinkeade did most of the questioning of Swajger and Brennan during the hearing.
Swajger, who said he has worked with Shein for nearly 17 years, testified that he did say the statements that Shein attributed to him in the affidavit. He told Kinkeade no one instructed him to talk to Shein about his upcoming trial testimony, and DePuy lawyers had instructed him to not speak to Shein. He also testified that no one indicated to him that Shein’s testimony would hurt him or hurt Shein.
Swajger conceded he was “concerned” for Shein when he had the brief conversation with the doctor on the morning on Oct. 13. “I think just because he was the only one involved in going out and making a live testimony, that it…It did concern me, sir,” Swajger told Kinkeade.
Swajger said he was worried that Shein’s testimony would affect his practice because there were other hip implant lawsuits pending. He said he was concerned Shein could potentially be involved in other suits, and might be subjected to personal liability or malpractice litigation because of it.
Swajger testified that he was surprised when Brennan called him on Oct. 12, and again on Oct. 13 to set up a conference call with DePuy defense attorneys on Oct. 13. He said he had time to think about the calls from Brennan while he commuted four hours from his home to Shein’s hospital in The Bronx.
He said he talked to Shein on his own volition.
“Yeah, I was kind of on my own,” Swajger testified. “Yes, I was concerned for him, and I had four hours to create that concern, I guess. So maybe it built in my head, but I was quite…I was concerned, yes, sir,”
Swajger’s attorney, Miles Feinstein, a criminal defense attorney in Clifton, New Jersey, also questioned the sales rep during the hearing—until he was cut off by Kinkeade. The judge threatened Feinstein with contempt after the lawyer questioned whether Kinkeade could be “fair.”
Brennan testified that she was “shocked” when she read Shein’s affidavit, and said she did not ask Swajger during their telephone conversations on Oct. 12 and 13 to do anything but make himself available for a call with the trial team.

“I absolutely did not direct or tell Mr. Swajger to do anything and I specifically told him not to talk to Dr. Shein about the litigation,” Brennan testified.

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J&J Hip Implant Patients Seek Big Damages From Texas Jury

Nov 14, 2017 | Law360

By Jess Krochtengel

Six New York plaintiffs on Tuesday asked a Texas federal jury to hit Johnson & Johnson with at least a nine-figure punitive damages award to punish the company for allegedly making and marketing a defective line of metal-on-metal hip implants.

In closing arguments that wrapped up a two-month bellwether trial, plaintiffs who say they suffered tissue damage and intense pain from negative reactions to the Pinnacle Ultamet line of metal-on-metal hip implants made by J&J's DePuy Orthopaedics Inc. unit asked the jury for "justice." Plaintiffs' counsel Mark Lanier of The Lanier Law Firm asked the jury to punish J&J "for being indifferent to our health," using humans as guinea pigs for an untested product that was pushed to market too soon, and failing to warn surgeons of the risks and problems with the device.

"Johnson & Johnson knew metal on metal wasn’t going to work," Lanier said. "Johnson & Johnson hadn’t solved the metal on metal problems. They just went to market anyway. They were using our people as an experiment without telling them."

Lanier urged the jury to punish both DePuy, which makes the hip implants, and parent company J&J, to send a message that the companies shouldn't sell “poison” marketed as candy. As for the size of that punishment, citing DePuy's corporate valuation of $4.2 billion and J&J's valuation of $73.98 billion, Lanier told jurors even a damages award of $100 million would hardly be felt by the companies.

In their closing statement, J&J and DePuy fought back against what defense counsel Steve Quattlebaum of Quattlebaum Grooms & Tull PLLC repeatedly characterized as an overly emotional appeal from the plaintiffs that was not supported by scientific evidence. Quattlebaum said DePuy developed a metal-on-metal option to address demand for a product that would not cause the kind of bone degradation an existing hip implant product on the market caused, and said metal-on-metal was a reasonable alternative at the time it was released.

"Were they doing that for the opportunity to engage in a short-term profit scheme that would have bad long-term consequences for patients and for the company?" Quattlebaum asked. "Or were they responding to the industry, the orthopedic community’s call for a solution to the No. 1 problem in joint orthopedics?"

Throughout his closing, Quattlebaum emphasized that the companies, surgeons and the patients don't live in an "ideal world" where every medical device can be extensively tested before it's released to the market, but in a "real world.”

The trial began in mid-September, in what's the fourth round of trials since 2014 in multidistrict litigation that includes more than 9,000 cases alleging DePuy made and marketed a defective line of metal-on-metal hip implants, referred to as the Pinnacle Ultamet. The first trial ended in a win for J&J, but plaintiffs won verdicts of $502 million and more than $1 billion in the second and third trials respectively, though the judgments were substantially reduced and appeals are pending before the Fifth Circuit.

For the past month, as the trial continued, the court and investigators from the U.S. attorney’s office were looking into allegations of witness tampering involving a doctor who’d treated three of the six plaintiffs. Judge Kinkeade on Monday said the allegations can’t be imputed to DePuy and would not let the jury hear testimony related to the issue.

The eight-member jury heard from the plaintiffs that J&J and DePuy valued marketing above research and development and had pushed the Pinnacle product with an incorrect statistic that it was 99 percent successful. The plaintiffs alleged J&J and DePuy failed to warn surgeons of tissue loss tied to microscopic metal ions from the product being shed in the body, used cheaper, less safe alternatives in the manufacturing process to keep costs down and profits high and that the alleged defects in the product turned people’s hips into “ticking time bombs.”

J&J told the jury there’s no evidence the surgeons who treated the six plaintiffs relied on or even saw the 99 percent statistic when choosing which kind of implant to use and said there’s no evidence the plaintiffs’ specific implants had the kind of problems the plaintiffs described. Quattlebaum told the jury it shouldn't award any damages because there's no evidence of wrongdoing by the company nor evidence of causation for the six plaintiffs. But if they do want to award damages, he suggested an award of their actual medical bills and modest additional damages for pain and suffering, ranging from $50,000 up to $800,000, depending on the plaintiff and the nature of their injuries.

In his rebuttal, Lanier seized on the $50,000 damages figure suggested for plaintiff Uriel Barzel, who is 88 and has a five-year life expectancy under New York law. Lanier suggested damages of $50,000 a day for Barzel's remaining years would be more appropriate compensation for his injuries.

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault of Neblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP

The defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC and Tracie J. Renfroe of King & Spalding LLP.

The consolidated cases are Alicea' et al. v. DePuy Orthopaedics Inc., et al., case number 3:15-cv-03489; Barzel v. DePuy, et al., case number 3:16-cv-01245; Kirschner v. DePuy, et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy, et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

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J&J Hip Implant Jury Won't Hear Witness Tampering Claim

Nov 13, 2017 | Law360

By Jess Krochtengel

A Texas federal judge refused Monday to allow jurors in a bellwether hip implant liability trial to hear testimony related to alleged witness tampering stemming from communications between a Drinker Biddle & Reath LLPattorney for defendant Johnson & Johnson and a company sales representative.

In a hearing marked by U.S. District Judge Ed Kinkeade threatening to hold the salesman's lawyer in contempt and continued tension between the parties over the tampering allegations, the judge said he hadn’t heard anything indicating the allegedly problematic conversations should be imputed to J&J unit DePuy Orthopaedics Inc. and would not allow the issue to be raised before the jury. His decision came a day before closing argument in the two-month trial in which six plaintiffs who had Pinnacle Ultamet metal-on-metal hip implants allege J&J made a defective product and failed to adequately warn of its risks.

"The court’s finding vindicates our position that the company has acted appropriately towards all witnesses involved in this litigation,” J&J attorney John Beisner of Skadden Arps Slate Meagher & Flom LLP said in a statement after the hearing. “The court's finding shows that opposing counsel's allegations — particularly the suggestions of criminal wrongdoing — were an unfair and unfounded attack on the integrity of the company and its legal team. We are glad to now have this matter behind us.”

For the past month, the FBI and the U.S. Attorney’s Office have been investigating allegations that DePuy sales representative Glenn Swajger “tainted” witness David Shein, a surgeon who had treated three of the six plaintiffs, through a conversation just days before Shein was set to testify. Swajger, who lives and works in New York, voluntarily submitted to questioning from the U.S. Attorney’s Office Monday morning, and on Monday afternoon, fielded questions from the judge outside the presence of the jury.

Swajger testified he told Shein that lawyers for DePuy were on him "like crazy,” put “big-time pressure” on him, had “peppered” him and that he was concerned Shein’s testimony in the trial could lead to ramifications for the doctor's practice. That conversation occurred just a few days before Shein was set to appear in Dallas as part of the trial.

Yet that characterization of being pressured by DePuy lawyers was at odds with Swajger’s description of the series of brief phone calls he had with Drinker Biddle associate Jessica Brennan. Brennan had informed him Shein would be testifying as part of the trial, and scheduled a time for the salesman to discuss Shein with the trial team, Swajger said. She did not suggest Swajger talk to Shein, nor did anyone from DePuy suggest Shein would face any kind of punitive action for testifying, he said.

“So you just raised a red flag for nothing?” Judge Kinkeade asked him.

“Yeah, maybe,” Swajger said. “I built it up in my own head.”

Swajger, who said he had little to no experience dealing with attorneys, described being shaken by Brennan’s calls because he thought the whole matter was over and done with. He said his concern about Shein testifying was that the doctor could potentially face some kind of future malpractice claim as a result of his testifying in the products liability trial.

Brennan, who is not part of the Pinnacle trial team in Texas but who represents DePuy in related litigation, also testified briefly Monday, saying she was “shocked” when she read an affidavit from Shein describing his conversation with Swajger. Brennan said she “absolutely did not” ask or direct Swajger to do anything other than be available for a call with the trial team and that she had told Swajger in their first conversation he should not discuss the case with Shein.

“We’re pleased with the court’s ruling and today’s testimony which clearly established that neither Drinker Biddle, Jessica Brennan nor [Drinker Biddle attorney] Mike Zogby ever requested the DePuy representative to even speak with Dr. Shein, let alone try to influence him in any way,” Bill Mateja of Polsinelli PC, who represents the Drinker Biddle attorneys, said after the hearing. “We’ve known all along that there was never any evidence of witness tampering on our part, and are not surprised with the decision. The issue has now been put to rest here in Texas, and we’re hopeful plaintiffs’ counsel in other products liability cases who have attempted to exploit these patently false accusations against Drinker Biddle, Brennan and Zogby will cease as the assertions are baseless.”

During the hearing, Judge Kinkeade clashed several times with Swajger defense counsel Miles Feinstein over the New Jersey lawyer’s attitude.

Feinstein told the judge he needed to catch a flight back to the Garden State on Monday afternoon to prepare for jury selection in a corruption trial there. But Judge Kinkeade told Feinstein he would not delay the parties and jurors in the hip implant trial to accommodate Feinstein’s other case. “That’s your problem," the judge said. "I’m sorry. You’re staying here.”

Later, after the judge had finished questioning Swajger, Feinstein went through his own round of questions with the sales representative. When Judge Kinkeade said he’d heard enough, Feinstein complained, insisting he be allowed to continue his examination and questioning whether the judge was being fair.

“You’re close to being in contempt,” Judge Kinkeade said. And as the hearing ended, the judge told Feinstein, “Don’t ever act that way in front of me again or I will hold you in contempt.”

The judge also appeared to bristle at Feinstein’s suggestion that plaintiffs’ counsel Mark Lanier of The Lanier Law Firm could himself be called as a witness in the tampering investigation, and at what the judge described as the implication Lanier had “created some kind of fiction” related to the Shein-Swajger conversation.

When Feinstein said he did not mean to imply Lanier “made up” anything related to the tampering allegations, the judge said, “I cleared all that up, didn’t I?”

Lanier told Law360 after the hearing he was “stunned and flabbergasted” Swajger admitted to saying the things reflected in an affidavit from Shein that J&J’s lawyers previously “accused me of manufacturing.” Lanier said he expects an apology soon from his opposing counsel.

J&J has called the witness tampering allegations "overblown" and criticized Lanier for "extrapolating that some conspiracy to intimidate witnesses was afoot."

"We never said that the factual statements in the Shein declaration were ‘manufactured,’” Beisner told Law360. “What we consistently asserted was that the statements in that declaration — and Dr. Shein's later testimony about those events — did not in any way suggest wrongdoing on the part of any J&J attorney. That's what the court found today. It was Mr. Lanier's unfounded characterization of the statements in the affidavit that we were challenging."

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault of Neblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP.

The J&J parties are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC, Tracie J. Renfroe of King & Spalding LLP and Richard Roper of Thompson & Knight LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

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Drinker Biddle Comms Keep Privilege In J&J Tampering Probe

Nov 8, 2017 | Law360

By Jess Krochtengel

Amid an investigation into witness tampering allegations raised in a hip implant product liability trial, a Texas federal judge on Tuesday found no evidence of crime in communications between Johnson & Johnson counsel from Drinker Biddle & Reath LLP and a company sales representative that would defeat the attorney-client privilege applicable to the records.

U.S. Magistrate Judge Paul Stickney had been asked to review a series of communications between a DePuy Orthopaedics Inc. sales representative and attorneys for J&J and DePuy that allegedly led the sales representative to tell a doctor who treated several plaintiffs in the trial that testifying could have ramifications for the doctor’s practice.

In a brief order, Judge Stickney found that the documents constitute attorney-client and work-product privileged material, with no applicable exception to that privilege, including the crime-fraud exception. The crime-fraud exception can defeat an assertion of privilege in situations where there is evidence that a lawyer helped facilitate or cover up a crime.

“Judge Stickney’s order is fully consistent with our position that there has been no improper conduct and no improper impact on this litigation,” John Beisner of Skadden Arps Slate Meagher & Flom LLP, an attorney for J&J, said Wednesday.

Counsel for the plaintiffs and for the attorneys didn’t immediately respond.

The witness tampering allegations arose after doctor David Shein testified that in a conversation with DePuy sales representative Glenn Swajger a few days before the doctor was set to appear in court, Swajger “looked terrible” and “appeared stressed” because “the lawyers were ‘on him like crazy’” and were “putting ‘big time pressure’ on him” in connection with Shein's upcoming testimony.

Plaintiffs’ counsel said that as a result of the conversation with Swajger, Shein had been “tainted” and they could not call him to testify. U.S. District Judge Ed Kinkeade referred the matter to the U.S. attorney’s office and the Federal Bureau of Investigation while the trial — the fourth bellwether in multidistrict litigation over the Pinnacle Ultamet metal-on-metal line of hip implants made by DePuy — has continued.

The judge also requested certification from counsel for the J&J parties and two Drinker Biddle attorneys implicated in Shein’s testimony that any communications and records relevant to that testimony from the previous 30 days be preserved. After that certification was made, Judge Kinkeade later ordered the parties to produce relevant documents for an in camera review.

The J&J parties and the attorneys redacted some of the documents they produced, saying they were not relevant to Shein’s testimony and that they could suffer unfair prejudice in the ongoing trial and the broader MDL proceeding if Judge Kinkeade reviewed the documents in full.

Their concerns prompted Judge Kinkeade to refer the document review to Judge Stickney to determine whether the crime-fraud exception, or any other exception, applied to the assertions of attorney-client privilege and work-product privilege.

The Drinker Biddle attorneys have told the court they made only a series of brief phone calls to Swajger during the time period in question, to schedule a meeting with the bellwether trial team. They have defended the calls as simple and appropriate and deny telling Swajger to have any kind of communication with Shein.

J&J has called the witness tampering allegations “overblown,” and denies there was any kind of effort to intimidate witnesses.

Swajger is expected to be questioned by the U.S. Attorney’s Office in Dallas on Monday, and has been ordered to appear in court after that meeting.

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault of Neblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP.

The J&J parties are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC, Tracie J. Renfroe of King & Spalding LLP and Richard Roper of Thompson & Knight LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

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J&J Unit Hit With Trimmed FCA Suit Over Hip Implants

Oct 31, 2017 | Law360

By Rachel Graf

Johnson & Johnson Services Inc. and its subsidiary DePuy Orthopaedics Inc. have been hit with a revised version of a suit in Massachusetts federal court alleging the companies indirectly submitted false claims to the government for faulty hip replacement devices after the First Circuit partially revived the allegations in July.

Whistleblowers Antoni Nargol and David Langton filed the most recent complaint Friday, alleging the companies violated the federal and New York false claims acts by misrepresenting the safety of DePuy’s Pinnacle metal-on-metal device used in hip replacements and ultimately causing the government to buy faulty products.

“This case involves a fraudulent scheme as old as the False Claims Act itself: DePuy lied so that it could sell the government a different and far inferior product than what the government thought that it was getting,” the suit says.

Nargol and Langton had alleged in a 2014 second amended complaint that the Pinnacle device had a manufacturing defect, but the company nonetheless made direct claims for the device to federal and state government agencies and indirectly caused health care providers to submit false claims. A lower court tossed the entire suit last year, but a First Circuit panel in July revived the allegations of indirect false claims.

An Oct. 5 mandate by the First Circuit sent the case back to the lower court to resolve the allegations of indirect false claims, where the whistleblowers filed their trimmed suit.

The complaint says DePuy misrepresented the specifications, manufacturing process, safety and failure rates of the hip implants. These alleged misrepresentations about the safety of the Pinnacle device have caused the government to pay claims that it otherwise would not have.

“We look forward to litigating the relators' claim that DePuy sold defective devices to the government,” the whistleblowers' counsel Ross B. Brooks of Sanford Heisler Sharp LLP said by email.

Nargol and Langton are seeking three times the amount of damages the federal and New York government incurred because of the alleged misconduct. They also seek a civil penalty between $5,500 and $11,000 for each violation of the federal False Claims Act and $12,000 for each violation of the New York False Claims Act.

Earlier this month, DePuy urged the First Circuit to delay implementing its decision to keep alive some of the claims while the companies evaluate filing a certiorari petition to the Supreme Court.

DePuy’s certiorari petition would concern whether whistleblowers must allege specific false claims or may provide “factual or statistical evidence that strengthens the inference of fraud beyond possibility.” If the “more flexible” standard is allowed, the company will question whether “unsubstantiated statistics” like those purportedly referenced in this suit can demonstrate whether false claims were submitted, according to court documents.

If DePuy’s petition for certiorari is granted, the district court can decide whether to stay the proceedings, the First Circuit determined.

Counsel for DePuy didn’t respond Tuesday to a request for comment.

The plaintiffs are represented by Russell L. Kornblith, Ross B. Brooks, Inayat Ali Hemani, David W. Sanford, H. Vincent McKnight and John McKnight Jr. of Sanford Heisler Sharp LLP, Kevin M. Kinne of Cohen Kinne Valicenti & Cook LLP and Grant E. Morris of the Law Offices of Grant Morris.

DePuy and J&J are represented by Mark D. Seltzer and Hannah R. Bornstein of Nixon Peabody LLP.

The case is U.S. et al. vs. DePuy Orthopaedics Inc. et al., case number 1:12-cv-10896, in the U.S. District Court for the District of Massachusetts.

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J&J Calls Witness Tampering Accusation 'Overblown'

Oct 31, 2017 | Law360

By Jess Krochtengel

Johnson & Johnson on Monday told a Texas federal judge that accusations of witness tampering in an ongoing hip implant product liability trial have been “overblown” by plaintiffs’ counsel, who the company said are trying to turn the issue into “an inflammatory and prejudicial sideshow.”

Defending its lawyers and a sales representative for J&J’s DePuy Orthopaedics Inc. unit, the company said there’s no reason for the parties or the court to spend more time pursuing an investigation into the details of the alleged witness tampering “where the undisputed evidence from the witness himself is that the events would have no effect on his testimony.” J&J and DePuy said the evidence obtained to date shows there’s no need for further inquiry in connection with the ongoing civil trial while the U.S. attorney’s office continues with a criminal investigation.

In a court filing, the companies said their lawyers had merely made a few phone calls to schedule a “routine, legal and legitimate” conversation with an employee of their client who might have knowledge pertinent to the litigation. They sharply criticized plaintiffs’ counsel Mark Lanier of The Lanier Law Firm for making what they said was an “unjustified and unreasonable” extrapolation that a conspiracy to intimidate witnesses was afoot.

If the court does further pursue an inquiry into the allegations, J&J and DePuy requested that Lanier and other plaintiffs’ counsel not be allowed to depose witnesses with respect to the subject. Permitting plaintiffs’ counsel to conduct depositions, instead of the court itself questioning the witnesses, “would only compound the one-sided nature of the inquiry conducted to date,” they said.

“And the prospect for abuse is substantial in light of Mr. Lanier’s already-expressed and overblown views of the facts,” they said.

Plaintiffs in the fourth bellwether trial of multidistrict litigation involving allegations J&J and DePuy made and marketed a defective metal-on-metal hip implant, known as the Pinnacle Ultamet, raised witness tampering allegations about a month into the trial. They say witness David Shein, a doctor who treated three of the six plaintiffs, has been “tainted” by an in-person conversation with a DePuy sales representative who expressed concern about the doctor coming to testify, purportedly after DePuy lawyers “pressured” the sales representative in a series of phone calls.

Shein testified under questioning by U.S. District Judge Ed Kinkeade that the sales representative said coming to testify in the trial could “come back to haunt me,” according to a transcript. But Shein said his response to that was that there’s nothing to be concerned about, that he would go and testify truthfully, that he thought the conversation was “nothing” and that he was not uncomfortable coming to testify.

The companies also called upon the court to expand the investigation to include Lanier and other plaintiffs’ counsel’s conversations with the doctor. Lanier and other members of his team could be key witnesses with respect to any discussion that took place with Shein, “and any balanced inquiry would need to examine that interaction as well,” they said.

J&J and DePuy said they have produced to the court for a private review records of its counsel’s communications related to the sales representative and Shein in connection with his testimony. According to their motion, the same kind of records have been requested from the sales representative and two Drinker Biddle & Reath LLP attorneys who are not part of the Pinnacle trial team in Texas but who are involved in related hip implant litigation and who had been in communication with the sales representative.

Plaintiffs’ counsel should similarly be required to preserve any communications between any of its attorneys or representatives and Shein, to preserve potentially exculpatory evidence, and should turn over to the court records related to those communications, the companies said.

Lanier told Law360 on Tuesday the plaintiffs would be filing a response with the court. He said he has rarely seen “such a one-sided recitation of facts” as the rosy picture the companies painted of the doctor’s testimony about his conversation with the sales representative. It’s the legal equivalent of summarizing “A Tale of Two Cities” by saying only “It was the best of times” and leaving out “It was the worst of times,” Lanier said.

“Isn’t it interesting they try to deflect it to me, and never one time address the inflammatory comments that the doctor made,” Lanier said. “This isn’t about me. [Paul] Manafort probably thinks CNN overreacted yesterday too.”

Lanier said he can’t put Shein on the stand after he perceived his practice had been threatened over testifying in the trial. He said he has “seen DePuy work to destroy the practices of witnesses who dare testify against them,” referring to two orthopedic surgeons who have been critical of the Pinnacle Ultamet metal-on-metal implants.

“All of the information that has been brought forward, including the surgeon’s affidavit, his subsequent testimony and the filings of the parties, shows that there has been no improper conduct and no improper impact on this litigation,” John Beisner of Skadden Arps Slate Meagher & Flom LLP, an attorney for J&J, said Tuesday. “We look forward to a prompt resolution of the matter, and hope that it will not further become a prejudicial sideshow to the ongoing trial.”

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault of Neblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP

The defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC, Tracie J. Renfroe of King & Spalding LLP and Richard Roper of Thompson & Knight LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

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Hip Implant Defendants Counter Witness Tampering Claim

Oct 31, 2017 | Texas Lawyer

By Brenda Sapino Jeffreys

In a highly-watched hip implant trial in Dallas, U.S. District Judge Ed Kinkeade of the Northern District of Texas brought in the FBI and the U.S. Attorney’s Office to investigate a witness tampering allegation. On Monday, the defendants filed a response suggesting that the response to the alleged witness tampering has been overblown.
Defendants DePuy Orthopaedics and its parent Johnson & Johnson and related companies allege in the response that Dr. David Shein, whose affidavit prompted Kinkeade to order the investigation, told the judge at a hearing on Oct. 16 that he didn’t think his conversation with a DePuy sales rep days before his testimony was a big deal and it would not have affected his testimony.
In the affidavit Shein filed on Oct. 15 in Alicea v. DePuy Orthopaedics, a contentious trial, the doctor alleged DePuy sales rep Glenn Swajger told him during a surgery-related conversation at his hospital on Oct. 13 that Swajger was worried “there could be ramifications” for the doctor’s medical practice in connection with his upcoming testimony at the trial in Dallas. Kinkeade asked the FBI and U.S. Attorney’s Office to investigate.
The defendants alleged in Monday’s response that Shein made it clear to Kinkeade in court on Oct. 16 that he didn’t think his brief conversation with Swajger “was that big a deal,’ ‘thought it was nothing,’ and ‘didn’t think that this was something.’” The defendants also allege Shein “was clear that the exchange had no effect on his comfort with testifying.”
The defendants claim Shein told Kinkeade on Oct. 16 that he just mentioned the conversation with Swajger to plaintiffs lawyer Mark Lanier in passing and “then this all blew up.”
“Mr. Lanier, however, extrapolated that some conspiracy to intimidate witnesses was afoot. … This extrapolation was unjustified and unreasonable, and does not suggest that any witness tampering occurred,” the defendants said in the response.
Lanier chose not to have Shein testify on Oct. 16 after he raised questions about possible witness tampering based on Shein’s affidavit. In an email on Monday, Lanier took umbrage at the defendants’ allegations in the response.
“The evidence of jury tampering was by the witness, not me,” Lanier wrote in the email, adding, “Judge Kinkeade said there is a prima facia case of attempted influence. He referred it to the FBI, not me.”
Lanier wrote that the defendants are only telling half of the story in their response.
“They continue to parade half-accurate statements ignoring the full truth and thereby distorting the reader’s understanding of what happened. This is akin to citing Dickens for claiming everything was fantastic because he wrote in a ‘Tale of Two Cities,’ ‘It was the best of times.’ Of course, leaving out the next clause, ‘It was the worst of times,’” Lanier wrote.
The defendants argue in the response that they agree with a logistics plan proposed last week by attorneys from Drinker Biddle & Reath that anyone who is questioned in connection with the alleged witness tampering should be interviewed by the U.S. Attorney’s Office, and then by Kinkeade in open court, if necessary. The defendants said depositions are not necessary.
“There is simply no reason to divert the parties’ or the court’s time—in the middle of a long and complicated trial—to pursue further inquiry into the details of alleged witness tampering where the undisputed evidence from the witness himself is that the events would have no effect on his testimony. After all, any wrongdoing that might have occurred (and none did) can be addressed through the criminal investigation requested by the court,” the defendants allege in the response.

Drinker Biddle is involved because it also represents the defendants in hip implant litigation, and one of its lawyers had been communicating with Swajger before he spoke with Shein on Oct. 13. However, the lawyer filed a motion on Oct. 24 saying she did not ask Swajger to communicatewith Shein about the trial.

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J&J calls opposing counsel inflammatory, asks for mistrial in Pinnacle hip case

Oct 26, 2017 | Reuters

By Tina Bellon

Johnson & Johnson’s orthopedics unit DePuy has called on a federal judge to toss an ongoing trial over the company’s metal-on-metal hip implants, saying plaintiffs had prejudiced the jury by making inappropriate references to other hip litigation.
The request marks the latest conflict in the nearly three-week-old trial over allegations that J&J defectively designed its Pinnacle hip implants and failed to warn of its risks, causing six New York plaintiffs to suffer tissue death, bone erosion and other injuries.
In a motion for mistrial filed in U.S. District Court for the Northern District of Texas on Wednesday, the company said lawyers for the plaintiffs used charged rhetoric to insinuate that J&J had acted unreasonably by not settling its hip claims.
Mark Lanier of the Lanier Law Firm, who represents the plaintiffs, had used "inflammatory analogy" to "the FBI's 10 Most Wanted list," J&J alleged, when he ticked through a list of other manufacturers of metal-on-metal implants, asserting that each one faced and settled litigation with respect to their products.
"Plaintiffs' inflammatory demonstratives and accompanying questions are part of an ongoing effort to inflame the jurors' passions and encourage them to issue verdicts in these cases that reflect their emotions and not the relevant facts and evidence," the company said.
It added that such declarations ran contrary to the Federal Rules of Evidence which generally bar references to settlements to avoid jury manipulation and urged District Judge Ed Kinkeade to grant its mistrial motion.
Lanier said DePuy had opened the door to his argument by showing the jury metal implants from other companies in earlier stages of the trial, saying they must have been good if other firms sold them as well. "That allows me to show that the other companies settled litigation over their product defects," Lanier said in a statement on Thursday.
J&J's motion comes just roughly a week after Kinkeade ordered a criminal investigation into alleged witness tampering.
He ordered the investigation after a New York-based doctor scheduled to testify on behalf of DePuy submitted an affidavit, saying that a company sales representative had told him there could be ramifications for him and his practice in connection with his trial testimony.
The company denies allegations that its lawyers had put pressure on the sales representative to intimidate the doctor and said there was no basis for the accusations.
In a motion filed on Tuesday, Jessica Brennan and Michael Zogby of Drinker Biddle & Reath, who are set to be investigated by Assistant U.S. Attorney Marcus Bush over their conversations with the sales rep, said they never asked the DePuy employee to talk to the witness.
The lawyers also asked that investigations do not include a conference call they had with the sales rep, arguing that conversation was protected by attorney-client privilege.
The ongoing trial is the fourth test trial in the multidistrict litigation that has more than 9,100 cases pending in Kinkeade's court.
J&J won the first bellwether trial in 2014. Subsequent juries have found in favor of the plaintiffs and awarded high damages which were later scaled back to $150 million and $543 million.
The case is In re DePuy Orthopaedics Inc, U.S. Court of Appeals for the 5th Circuit, No. 17-10812.
For plaintiffs: Mark Lanier of the Lanier Law Fir

For DePuy: John Beisner of Skadden Arps Slate Meagher & Flom

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Johnson & Johnson lawyers deny tampering allegations in hip case

Oct 25, 2017 | Mass Device

By Brad Perriello

Lawyers for Johnson & Johnson(NYSE:JNJ) in a bellwether trial over metal-on-metal hip implants made by J&J subsidiary DePuy Orthopaedics yesterday denied witness tampering allegations leveled by the lead plaintiff’s attorney.
Last week a federal judge in Texas took the unusual step of asking federal prosecutors and the FBI to probe the possible witness tampering. Mark Lanier, lead attorney for the plaintiffs in one of six cases being tried in the U.S. District Court for Northern Texas bellwether before Judge Ed Kinkeade, raised the tampering issue during an Oct. 16 hearing based on a conversation between a DePuy sales rep and a surgeon who’s a witness in the case.
Dr. David Stein filed an affidavit Oct. 15 documenting a conversation with Glen Swajger held ostensibly to discuss “a procedure requiring [Swajger’s] involvement.”
“Mr. Swajger looked terrible and appeared stressed, so I asked him what was going on,” Stein said in the affidavit. “He said the day before (October 12, 2017), he had been contacted by the DePuy lawyers and that discussion made him anxious. He said the lawyers were ‘on him like crazy.’ They were putting ‘big-time pressure’ on him.”
Swajger then warned Stein of possible “ramifications” to his medical practice “in connection with my upcoming Dallas testimony,” according to the affidavit.
“He indicated the lawyers were ‘peppering him.’ He said the ‘business in Dallas was freaking [him] out.’ He said he had a ‘terrible’ day on Thursday as a result of this and my going to Dallas was driving him crazy. He said ‘I care about you,’” Stein said in the affidavit.
After Lanier raised concerns about possible witness tampering during the hearing Monday, Kinkeade said he would ask the U.S Attorney’s office in his district and FBI agents to interview Swajger and any defense lawyers he spoke with.
In a motion filed yesterday, DePuy attorneys Jessica Brennan and Michael Zogby said that Brennan’s contact with Swajger was limited to brief phone conversations confirming his availability for a conference call to discuss the case.
“At no time during Ms. Brennan’s aforementioned calls to Mr. Swajger, or on Mr. Swajger’s call to her, did she request that Mr. Swajger do anything other than be available for a conference call with the trial team. She certainly did not tell Mr. Swajger to do anything or to communicate with Dr. Shein. She merely explained that the trial team wanted to visit with him, explained why, and worked through the timing of such call given Mr. Swajger’s busy schedule,” according to the motion.

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Drinker Biddle Attys Deny Pressuring Doc In Hip Implant Trial

Oct 24, 2017 | Law360

By Jess Krochtengel

Two Drinker Biddle & Reath LLP attorneys whose names were raised as part of an investigation into witness tampering allegations in a bellwether hip implant trial on Tuesday told a Texas federal judge they made only appropriate phone calls to an employee of Johnson & Johnson subsidiary DePuy Orthopaedics Inc., whose conversation with a doctor led to the doctor's planned testimony being cancelled.

Plaintiffs raised allegations of witness tampering a month into the fourth bellwether trial in multidistrict litigation including more than 9,000 cases alleging DePuy made and marketed a defective line of metal-on-metal hip implants, referred to as the Pinnacle Ultamet.

Drinker Biddle associate Jessica Brennan has offered to come to Dallas to be interviewed by a U.S. attorney and testify about her phone calls with a DePuy sales representative in the days leading up to the planned testimony of David Shein, a doctor who treated three of the six plaintiffs in the trial.

Drinker Biddle partner Mike Zogby said while he is also willing to come, he was not on any calls that took place before the rep spoke to Shein and would like the court to waive an examination of him.

Brennan and Zogby are not part of the Pinnacle trial team in Texas but represent DePuy in related hip implant litigation.

“We trust that the court will also come to know what we know to be the case — that the simple scheduling calls Ms. Brennan made were nothing more than the sort of simple, appropriate scheduling calls that lawyers make day-in and day-out,” Bill Mateja of Polsinelli PC, an attorney for the lawyers, told Law360 on Tuesday.

U.S. District Judge Ed Kinkeade on Oct. 16 called in the Federal Bureau of Investigation and the U.S. Attorney’s Office to investigate allegations of witness tampering, the day after plaintiffs’ lawyers told the court they had concerns about potential pressure put on Shein.

Mateja said both Brennan and Zogby are fully cooperating with Judge Kinkeade’s inquiry into witness tampering allegations.

In a motion to the court requesting details on how it wants to examine Brennan and Zogby, Brennan said that at no time during a series of brief phone calls on Oct. 12 and 13 with the sales representative, Glen Swajger, did she request Swajger “do anything other than be available for a conference call with the trial team.”

“She certainly did not tell Mr. Swajger to do anything or to communicate with Dr. Shein. She merely explained that the trial team wanted to visit with him, explained why, and worked through the timing of such call given Mr. Swajger’s busy schedule,” the attorneys said in their motion.

Counsel for DePuy, Swajger and the plaintiffs did not immediately respond to questions about the motion.

Shein, who said he has known Swajger for more than 15 years and considers him a friend, testified he had an in-person conversation with Swajger around 11 a.m. on Oct. 13 during which Swajger appeared stressed and unsettled, according to a transcript. According to Shein’s testimony, Swajger had been "peppered" and “henpecked” by DePuy attorneys who questioned Swajger about Shein and had “kept on at him all the time.” Shein said Swajger told him he was concerned about Shein coming to Dallas to testify in the trial and that “he was worried there could be ramifications for me in my practice.”

A lawyer for the plaintiffs, Mark Lanier of The Lanier Law Firm, told the court he could not put Shein on the stand in light of the pressure, intimidation and “subtle psychological manipulation of his testimony” reflected in his conversation with Swajger.

Johnson & Johnson trial attorneys have said the “insinuation of impropriety” is improper and that they have acted appropriately toward all witnesses involved in the litigation.

Brennan and Zogby on Monday laid out a timeline of calls to Swajger that is at odds with Shein’s description of what he heard from Swajger.

In their motion, they said Brennan spoke to Swajger for about four and a half minutes on Oct. 12 to set up a call between him and the trial team. Zogby was not on the call. According to the motion, Swajger requested Brennan call him back the following day to finalize a time for the call.

Brennan said she called Swajger at 11 a.m. on Oct. 13, that Swajger suggested a 3 p.m. conference call and that the call, which Zogby also was not on, lasted for less than one and a half minutes. At 2:55 p.m. on Oct. 13, Brennan called Swajger back to confirm he was available, then at 3:01 patched him into the conference call, which did include Zogby, she said in the motion.

Brennan and Zogby requested that any interviews with the U.S. Attorney’s Office or questioning by Judge Kinkeade be limited to the Oct. 12 to Oct. 13 time period and that the inquiry not include the substance of the conference call on Oct. 13. DePuy has communicated its willingness to waive any attorney-client privilege that might pertain to the firm’s communications with Swajger if the court’s inquiry is limited to those parameters, they said in the motion.

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault of Neblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP

The defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC and Tracie J. Renfroe of King & Spalding LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

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Lawyer Denies Witness Tampering in Hip Implant Trial

Oct 24, 2017 | Texas Lawyer

By Brenda Sapino Jeffreys

A lawyer for DePuy Orthopaedics, the defendant in a bellwether hip implant trial in Dallas, said in a motion filed Tuesday that said she did not ask a DePuy sales representative to “do anything or communicate” with a doctor who filed an affidavit suggesting witness tampering.
In the motion, filed by Drinker, Biddle & Reath associate Jennifer Brennan and partner Michael Zogby, the DePuy attorneys allege that Brennan made several calls to sales rep Glenn Swajger on Oct. 12 and 13 but she never asked him to do anything other than make himself available for a conference call with the trial team Oct. 13.
“She certainly did not tell Mr. Swajger to do anything or to communicate with Dr. [David] Shein. She merely explained that the trial team wanted to visit with him, explained why, and worked through the timing of such call given Mr. Swajger’s busy schedule,” Brennan and Zogby allege in their motion “requesting logistics for the inquiry” related to Dr. Shine.
On Oct. 16, U.S. District Judge Ed Kinkeade said he would have the FBI and the U.S. Attorney’s office question Shein, Swajger and others, including lawyers, in connection with the affidavit Shein filed Oct. 15 on the eve of the day he was to be called as a witness by the plaintiffs’ attorneys.
In that affidavit, Shein said Swajger told him during a surgery-related conversation at his hospital on the morning of Oct. 13 that he worried “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony. Shein said in the affidavit that Swajger told him the DePuy lawyers had contacted him on Oct. 12 and were pressuring him, and making him anxious.
Plaintiffs attorney Mark Lanier raised concerns about witness tampering after Shein filed the affidavit. While noting he wasn’t jumping to conclusions, Kinkeade said the affidavit was serious and “certainly disturbing and disconcerting to me.”
In Tuesday’s motion, Brennan and Zogby asked Kinkeade to adopt their proposal for the logistics of the questioning. They suggested Assistant U.S. Attorney Marcus Bush or a designee interview Brennan, and then Kinkeade question her in open court, limiting examination to communications Brennan had with Swajger on Oct. 12 and 13 prior to the conference call Swajger had with the trial team at 3:01 p.m. on Oct. 13.
Brennan and Zogby noted in the motion that DePuy is only waiving attorney-client privilege in connection with communications between Brennan and Swajger on Oct. 12 and Oct. 13 up until the 3:01 p.m. call with the trial team. They also said Zogby should not be questioned because he was not on the phone calls in question.
In the motion, the lawyers allege that Brennan left a voicemail for Swajger at 4:25 p.m. on Oct. 12, and then he returned the call at 4:56 p.m. “Ms. Brennan communicated the trial team request to have a call and discussed the timing of such call. Ultimately, Mr. Swajger suggested that she call him back the next day at 11 a.m. because he would then have a better idea of what his schedule would be like for the day,” the lawyers wrote.
The lawyers wrote that Brennan called Swajger at 11 a.m. Oct. 13 to propose a 3 p.m. call, called him back at 2:55 p.m. to confirm that time still worked, and then called him back at 3:01 p.m. to patch him into the conference call. Zogby was on that trial team call.
The lawyers wrote that their attorney, Polsinelli shareholder William Mateja of Dallas, contacted Bush to offer Brennan for an interview similar to his prior interview of Shein.
Lanier, founder of Lanier Law Firm of Houston, said Shein was interviewed by the FBI and the U.S. Attorney’s office on Oct. 16 before he left to fly back to New York. Lanier could not be immediately reached for comment.
Richard Roper, a partner at Thompson & Knight in Dallas who represents DePuy, its parent, Johnson & Johnson and Johnson & Johnson Services in connection with the witness tampering investigation, declined to comment.
In an amended certification filed Oct. 20, Roper certified that his clients have identified individuals, including inside and outside counsel for the companies, who may have communicated with Swajger from Sept. 12 through Oct. 13 about Shein, and have preserved all communications.
Also on Oct. 20, Mateja filed certification that his clients, including Brennan, a Drinker Biddle associate in Florham Park, New Jersey, Zogby, a partner in New York and Florham Park, and the firm, have put a preservation hold on all communications relating to Swajger and Shein from Sept. 12 through Oct. 13.

The bellwether trial, which is hard-fought, started Sept. 19.

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Lawyers Lawyer Up as FBI, Prosecutors Are Asked to Investigate Witness Tampering in Hip Implant Trial

Oct 19, 2017 | Texas Lawyer

By Brenda Sapino Jeffreys

The lawyers are lawyering up in the bellwether hip implant trial that now includes allegations of witness tampering.
Prominent Dallas criminal defense attorneys with extensive federal court experience have notified the court that they will appear on behalf of DePuy Orthopaedics and two of its outside counsel after a federal judge said he wants the FBI and U.S. Attorney’s office to interview the lawyers and others in connection with the witness tampering allegations.
Polsinelli shareholder William Mateja and associate Jason Hoggan filed a notice of appearance on Oct. 18 on behalf of DePuy outside counsel Michael Zogby and Jessica Brennan. Zogby is a partner at Drinker Biddle & Reath in Florham Park, New Jersey, and in New York, and Brennan is an associate in Florham Park.
Richard Roper, a partner at Thompson & Knight in Dallas and Fort Worth, filed a notice of appearance on behalf of DePuy Orthopaedics, Johnson & Johnson and Johnson & Johnson Services. Johnson & Johnson is DePuy’s parent company.
Mateja is an attorney for Texas Attorney General Ken Paxton, who is currently facing criminal charges. Mateja is a former assistant U.S. attorney and was senior counsel to Deputy Attorneys General Larry Thompson and James Comey.
Roper is a former U.S. Attorney for the Northern District of Texas. Since he went into private practice in 2009, he has represented Ralph Janvey, the court-appointed receiver seeking assets of convicted financier R. Allen Stanford, and was attorney pro tem for Texas in the prosecution of former Williamson County DA Ken Anderson.
Mateja said in a statement that the Drinker Biddle attorneys representing DePuy are fully cooperating with the investigation.
"We trust that the Court will also come to know what we know to be the case--that the simple scheduling call Ms. Brennan made was nothing more than the stort of simple, appropriate scheduling calls that lawyers make day-in and day-out," he said.
Roper did not immediately respond to a request for comment.
Witness tampering allegations became an issue in the trial in Alicea v. DePuy Orthopaedics after a New York doctor filed an affidavit Oct. 15 in which he alleged a sales representative told him during a surgery related conversation at his hospital Oct. 13 that he worried “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony.
New York orthopedic surgeon David Shein said in the affidavit that the sales rep complained to him that DePuy lawyers had contacted him Oct. 12, and the conversation made him anxious. Shein wrote that the sales rep said the lawyers were “peppering him” and the “business in Dallas was freaking [him] out.”
“He said the lawyers were ‘on him like crazy.’ They were putting ‘big time pressure’ on him,’ ” Shein wrote in the affidavit about his conversation with the sales rep.
At a hearing Oct. 16, U.S. District Judge Ed Kinkeade said that he would not jump to any conclusions, but said the allegations in the affidavit are “ certainly disturbing and disconcerting to me.” He told the lawyers, according to a transcript of the hearing, that he wants the FBI and the U.S. Attorney’s office to question Shein “along with everybody else involved, including any lawyer that’s here, any lawyer that’s had any contact of any kind.”
According to the transcript, DePuy defense attorney Steven Quattlebaum, managing member of Quattlebaum, Grooms & Tull in Little Rock, Arkansas, told Kinkeade that Zogby and Brennan have a “relationship” with the sales rep. Quattlebaum said Zogby and Brennan may have contacted the sales rep last week to set up a telephone conference call he had with the sales rep on Oct. 13 because the plaintiffs’ legal team expected to call Shein to the witness stand on Oct. 16.
Quattlebaum said his Oct. 13 call with the sales rep, which he said took place in the afternoon — apparently after the sales rep spoke with Shein — was simply to get insight into Shein’s current relationship with DePuy.
“Of course I want to know is the doctor mad at DePuy for any reason, is the doctor OK with you, is he still using DePuy products. I just want to know generally is everything good, because when we took his deposition everything was good, and I wanted to make sure nothing had changed in the interim,” Quattlebaum told Kinkeade.
Quattlebaum said the affidavit was surprising because “the sales rep was under instructions not to talk to the doctor about any of this.”
Zogby did not immediately respond to two telephone messages and an email request for comment. Brennan did not immediately respond to a telephone message.
Houston lawyer W. Mark Lanier, founder of Lanier Law Firm who is lead attorney for the six plaintiffs in the trial, told Kinkeade during the hearing he could not put Shein on the witness stand as planned Oct. 16 because information in the affidavit suggests Shein was pressured or intimidated.

Another member of DePuy’s defense team, John Beisner, a partner at Skadden Arps Slate Meagher & Flom in Washington, D.C., said, “We take all our legal obligations and responsibilities very seriously, and do not believe there is any basis for these accusations. We have acted appropriately toward all witnesses involved in this litigation.”

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Feds Says Witness Tampering Allegations In Civil Trial New To Him

Oct 18, 2017 | Texas Lawyer

By Brenda Sapino Jeffreys

Witness tampering allegations are something U.S. District Judge Ed Kinkeade of Dallas has seen a lot in criminal cases, but never before in a civil lawsuit in his court.
That may help explain why the Dallas judge took strong action on Oct. 16 and told lawyers in a hip implant bellwether trial that he would have the FBI and the U.S. Attorney’s office question a New York doctor and others about a conversation the doctor had just a few days before he was scheduled to testify at the trial.
In an affidavit filed in Alicea v. DePuy Orthopaedics on Oct. 15, New York orthopedic surgeon David Shein alleged that a DePuy Orthopaedics Inc. sales representative told him during a surgery-related conversation at his hospital in the Bronx on Oct. 13 that “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony. Depuy Orthopaedics is a subsidiary of Johnson & Johnson.
Shein said in the affidavit that the sales rep complained to him that the lawyers were “peppering him” and the “business in Dallas was freaking [him] out.” Shein said in the affidavit that the sales rep told him DePuy lawyers had contacted him on Oct. 12 and that the conversation made him anxious.
Kinkeade told lawyers during the hearing that the information in the affidavit is serious and “certainly disturbing and disconcerting,” according to a transcript.
“I’ve never had this happen in a civil case before, and we’ll just have to—I can’t resolve it all today and I’m not going to make any snap judgments today about anything. But this is something that can be prosecuted here or there, and I don’t know which—how it will wind up,” the judge said at the hearing.
Texas lawyers who try cases in federal court said witness tampering allegations come up more often in criminal cases but not frequently in civil suits.
Philip Hilder, of Hilder & Associates in Houston, said witness tampering may be exposed more in criminal cases because of the clearly defined parameters that need to be followed in criminal cases. For instance, when individuals are charged with an offense, they are usually admonished by the court to not have contact with witnesses, and are warned that to do so would be considered witness tampering or obstruction of justice.
But in a civil suit, people may innocently contact witnesses under the belief that it is okay to talk to them about their testimony, said Hilder, a former federal prosecutor for the U.S. Attorney’s Office for the Southern District of Texas and the U.S. Department of Justice.
“That’s why you hear a lot more about it in criminal cases. The definitions are more pronounced as to who you can contact and talk with and who you can’t. In civil cases, it’s blurred,” Hilder said.
Brian Wice, a criminal defense lawyer who is a special prosecutor in the criminal case against Texas Attorney General Ken Paxton, said witness tampering may be more common in criminal cases because the stakes may be infinitely higher, and “sometimes people are more likely to fall into that ethical abyss where they would attempt to shade their testimony in a matter where it’s not the truth, the whole truth.”
Michael Uhl, a partner at Fitzpatrick Hagood Smith & Uhl in Dallas who used to work at the U.S. Attorney’s Office in the Northern District of Texas, said he could recall several investigations of witness tampering in both civil and criminal cases. In the criminal cases, Uhl said, it was usually when witnesses were paid off or secured away so they couldn’t be served with a subpoena.
He said the FBI is really good at tracking down those witnesses, and in most cases, the witnesses “give up” the lawyer who tampered with them.
“Sometimes it’s brought to the federal judge’s attention who, as you can imagine, deals with the lawyers pretty harshly,” Uhl said. In a situation in which a defendant tampers with a witness or tries to change their testimony, that obstruction of justice is dealt with at the defendant’s sentencing, he said.
In a situation in which a defendant tampers with a witness or tries to change their testimony, that obstruction of justice is dealt with at the defendant’s sentencing, he said. In court, he added, a good cross-examination can often reveal witness tampering.
Matthew Orwig, a partner at Winston & Strawn in Dallas who is a former U.S. Attorney for the Eastern District of Texas, said he also has seen witness tampering allegations more often in criminal cases. But he also has seen it occur in white-collar crime cases.
However, he does not recall ever hearing about witness tampering taking place in a civil case between two private parties, such as the hip implant trial in Kinkeade’s court.
In the hip implant trial, which started on Sept. 19, Kinkeade told lawyers he wasn’t jumping to any conclusions, but wants the FBI and the U.S. Attorney’s office to question Dr. Shein, as well as the sales rep and and the lawyers who contacted the sales rep. That unusual move comes in a particularly high-stakes and contentious trial.
Orwig said it’s important to not jump to conclusions about the affidavit, and the judge acted judiciously. “He wants others to look into this. He obviously felt there was enough to deserve further inquiry.”
Orwig said he worked on some criminal trials, both as a prosecutor and as a defense attorney, when witness tampering allegations arose. “Sometimes there’s something to it and sometimes there’s not, and sometimes it’s something serious that could affect the trial and oftentimes it’s not,” he said.
Plaintiff’s lawyer W. Mark Lanier, of Lanier Law Firm of Houston, said the information in Shein’s affidavit is “brazen, stunning, outrageous” and merits an investigation.
But John Beisner, a member of the DePuy defense team and a partner at Skadden Arps Slate Meagher & Flom in Washington, D.C., said nothing inappropriate took place.
“We take all our legal obligations and responsibilities very seriously, and do not believe there is any basis for these accusations,” he said. “We have acted appropriately towards all witnesses involved in this litigation.”

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High-Stakes Hip Implant Trial Takes Series of Contentious Turns

Oct 18, 2017 | Texas Lawyer

By Amanda Bronstad

With another potentially $1 billion verdict on the line, two heavyweight lawyers—plaintiffs’ counsel W. Mark Lanier and defense lawyer John Beisner—are trading ever-escalating accusations and barbs in court papers in a high-stakes DePuy hip implant trial.
Lanier and his team are complaining of improper conduct and frivolous objections, and lawyers for hip implant maker Johnson & Johnson’s DePuy Orthopaedics Inc. have accused plaintiffs’ attorneys of misleading the jurors and springing new evidence on them in a “trial by ambush.”
To be sure, it’s no surprise that lawyers in the fourth bellwether trial over Pinnacle hip implants are fighting tooth and nail. Two previous trials landed $502 million and $1.04 billion verdicts. And as in those trials, Johnson & Johnson faces consolidated claims made by multiple plaintiffs at the same time—six New York plaintiffs to be exact.
It’s also not the first time that Lanier and Beisner have traded barbs in the litigation, which involves more than 9,000 cases. Earlier this year, Beisner, of Skadden, Arps, Slate, Meagher & Flom in Washington, D.C., accused Lanier, of The Lanier Law Firm in Houston, of failing to disclose payments he made to two expert witnesses in the second bellwether trial.
But the accusations in the latest trial, which began in Sept. 19 in Dallas, have been excessively contentious. In the latest spat, Lanier raised questions about potential tampering with one of his witnesses—a revelation that U.S. District Judge Ed Kinkeade of the Northern District of Texas on Monday said could end up involving federal prosecutors and the FBI.
Lawyers on both sides already have slung more than a dozen motions and trial briefs at one another. Neither Lanier nor Beisner responded to calls seeking comment on this story.
Kinkeade has yet to rule on the series of motions. Here’s what’s been filed:
Plaintiffs’ lawyers have filed: A Sept. 27 trial brief to stop defense lawyers from making “repetitive and meritless objections” during trial. “Defendants’ tactics are nothing more than improper attempts to delay and obfuscate the trial,” the brief says. Johnson & Johnson’s lawyers responded on Sept. 29 with: “The fundamental premise of plaintiffs’ brief is that defendants should only be allowed to make objections at trial if plaintiffs deem those objections to have merit. This proposal is as preposterous as it sounds.” Trial briefs filed on Sept. 21 and Oct. 3 accuse Johnson & Johnson’s lawyers of improper conduct – in particular, telling the jury about the worldwide popularity of Pinnacle hip implants knowing that plaintiffs’ attorneys were barred from bringing up previous deferred prosecution agreements involving bribes to foreign government officials and payments to doctors. Johnson & Johnson’s lawyers, in a Sept. 26 response, accused plaintiffs’ attorneys of mischaracterizing those agreements. At a hearing on Monday, Kinkeade heard arguments about the statements of doctor that a DePuy sales representative told him “there could be ramifications” for his medical practice in connection with his upcoming testimony for the plaintiff. “He said the lawyers were ‘on him like crazy,’” according to an Oct. 15 affidavit filed by Dr. David Shein. Kinkeade called the developments “certainly disturbing and disconcerting to me.” He said he wanted the U.S. Attorney’s Office and the FBI to interview the sale rep and any lawyers who contacted him.
Johnson & Johnson’s lawyers have filed: An Oct. 11 motion for mistrial based on Lanier’s references during witness questioning to prior cases involving DePuy hip implants. The motion notes that Lanier has done this before. “As demonstrated by the last MDL trial—where similar improper questioning and testimony culminated in gargantuan verdicts—improper references to ‘hundreds of other lawsuits’ are uniquely prejudicial because they tend to inflate any damages award.” The motion claims Lanier’s references violate a motion in limine order and, although some of the defense’s objections were sustained, “the horse was already out of the barn and the damage had been done.” On Oct. 15, Lanier deniedany violations of court orders and insisted that the references are necessary to show witness bias and establish claims for punitive damages. An Oct. 9 motion to exclude or limit the testimony of Dr. Bernard Morrey—one of the experts whose payments Beisner accused Lanier of failing to disclose in an earlier trial. In a Sept. 18 order, Kinkeade allowed Morrey to testify as long as he provided a written report to Johnson & Johnson three days prior to testimony. The motion, which is Johnson & Johnson’s second in this case, says the report “essentially reprinted Dr. Morrey’s testimony” from an earlier trial “in bullet-point format.” If he testifies, the motion cautions, Morrey should not be permitted to mention his own patient experiences without medical records nor give opinions that are not in his report—as happened in previous trials. Lanier countered in an Oct. 10 response: “Defendants are fully aware of the testimony Dr. Morrey intends to offer at trial—and they have known it for a very long time.” An Oct. 15 motion for a jury instruction on the duty to warn to “correct plaintiffs’ counsel’s misrepresentation.” Specifically, the motion accuses Lanier of “insinuating to the jury several times” that Johnson & Johnson had a duty to warn patients when, under New York law, that duty was to surgeons. An Oct. 15 motion for a jury instruction to “disregard plaintiffs’ counsel’s misleading questioning” of a defense witness regarding assets he held in a nonprofit foundation. Plaintiffs’ attorneys, in an Oct. 17 response, insist that an instruction isn’t necessary. A Sept. 19 motion to reconsider consolidation of the six plaintiffs into a single trial. The motion is sealed, but Johnson & Johnson has repeatedly fought consolidated trials as leading to larger verdicts and prejudicing defendants. In an Oct. 10 response, plaintiffs’ attorneys called consolidated trials “standard operating procedure” in mass torts.

It’s unclear how Kinkeade could approach the motions and trial briefs. In the last trial, Johnson & Johnson’s lawyers filed a trial brief complaining that the plaintiffs would end up with more time than they would. But according to a Nov. 17 transcript, Kinkeade criticized defense counsel for causing its own delays by asking witnesses multiple questions just “to get to the point.”
“It’s just every time you file one of those, if it’s deserved I’ll take it, and I think I’ve done that in this trial,” he said, referring to trial briefs and motions. “You’ve got a very clean trial, regardless of the fact y’all have filed two motions for mistrial. So be it.”
In addition to Beisner, Johnson & Johnson’s team on the court papers includes Skadden’s Stephen Harburg, another Washington partner; Steven Quattlebaum of Quattlebaum, Grooms & Tull in Little Rock, Arkansas; and Tracie Renfroe, a Houston partner at King & Spalding.
On the plaintiffs’ team, Lanier is joined by Wayne Fisher of Fisher, Boyd, Johnson & Huguenard in Houston; Richard Arsenault of Neblett, Beard & Arsenault in Alexandria, Louisiana; and Jayne Conroy of Simmons Hanly Conroy in New York.

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Tampering allegations in Johnson & Johnson hip case prompt judge to trigger probe

Oct 18, 2017 | Mass Device

By Brad Perriello

A federal judge in Texas this week took the unusual step of asking federal prosecutors and the FBI to probe possible witness tampering by lawyers for Johnson & Johnson (NYSE:JNJ) in a bellwether trial over metal-on-metal hip implants made by J&J subsidiary DePuy Orthopaedics.
Mark Lanier, lead attorney for the plaintiffs in one of six cases being tried in the U.S. District Court for Northern Texas bellwether before Judge Ed Kinkeade, raised the tampering issue during an Oct. 16 hearing based on a conversation between a DePuy sales rep and a surgeon who’s a witness in the case.
Dr. David Stein filed an affidavit Oct. 15 documenting a conversation with Glen Swajger held ostensibly to discuss “a procedure requiring [Swajger’s] involvement.”
“Mr. Swajger looked terrible and appeared stressed, so I asked him what was going on,” Stein said in the affidavit. “He said the day before (October 12, 2017), he had been contacted by the DePuy lawyers and that discussion made him anxious. He said the lawyers were ‘on him like crazy.’ They were putting ‘big-time pressure’ on him.”
Swajger then warned Stein of possible “ramifications” to his medical practice “in connection with my upcoming Dallas testimony,” according to the affidavit.
“He indicated the lawyers were ‘peppering him.’ He said the ‘business in Dallas was freaking [him] out.’ He said he had a ‘terrible’ day on Thursday as a result of this and my going to Dallas was driving him crazy. He said ‘I care about you,'” Stein said in the affidavit.
After Lanier raised concerns about possible witness tampering during the hearing Monday, Kinkeade said he would ask the U.S Attorney’s office in his district and FBI agents to interview Swajger and any defense lawyers he spoke with, according to Law.com.
“It is extremely concerning to me when there are requirements under the federal law, as well as state law, that witnesses not be tampered with, that—that it’s a serious felony, that it involves prison time, that it cuts to the core of who we are as a people and what our courts are about,” Lanier said, the website reported.
“This is a serious matter that requires serious—you know—serious treatment and has serious ramifications,” Kinkeade replied, according to the site, noting that although he’s not jumping to conclusions, “it is certainly disturbing and disconcerting to me.”
Lanier had planned to call Shein to testify Monday, but would not in light of the affidavit, citing Shein’s friendship with Swajger, the apparent involvement of DePuy lawyers and Swajger’s avowal to Shein that he still believes in metal-on-metal implants.
“There’s no way as a lawyer I can put this witness on the stand in light of that type of pressure and in light of … that type of pressure and in light of — of that type of — intimidation, and in light of that type of settled psychological manipulation of his testimony, as I perceive it,” Lanier said, according to Law.com.
Defense attorney Steven Quattlebaum told Kinkeade he wants to know the “whole facts,” the site reported, citing a transcript of the hearing.
“The insinuation that there’s some impropriety in talking to our employee, and the insinuation is that we somehow directed the employee to go do something improper, with no facts to back that up whatsoever, is what makes me angry,” Quattlebaum said, adding that he had a call with Swajger hours after the rep’s conversation with Shein and that other defense attorneys had spoken with Swajger to assess the status of DePuy’s relationship with Shein.
“We take all our legal obligations and responsibilities very seriously, and do not believe there is any basis for these accusations. We have acted appropriately towards all witnesses involved in this litigation,” added defense attorney John Beisner, Law.com reported.

Kinkeade also denied the defense’s motion for a gag order on the tampering issue.

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Judge orders FBI probe in DePuy hip trial over alleged witness tampering

Oct 17, 2017 | Reuters

By Tina Bellon

A federal judge in Dallas on Monday ordered a criminal investigation into alleged witness tampering in the trial of a lawsuit claiming injuries resulted from a defective hip implant made by Johnson & Johnson’s DePuy Orthopaedics unit.
Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas is presiding over the fourth test trial in the multidistrict litigation over the company’s metal-on-metal hip implants, which has more than 9,100 cases pending.
Plaintiffs allege DePuy defectively designed the devices, causing tissue death, bone erosion and other injuries. J&J rejects those allegations.
Kinkeade ordered the investigation after a New York-based doctor scheduled to testify on behalf of DePuy submitted an affidavit on Sunday night.
In his affidavit, David Shein of the Montefiore Medical Center described how he was approached by DePuy sales representative Glen Swajger on Friday. Shein and Swajger had been friends for years, according to the court transcript.
Shein said Swajger "looked terrible and appeared stressed" and told the doctor that the DePuy lawyers were "on him like crazy" and putting "big-time pressure on him."
The sales rep told the doctor there could be ramifications for him and his practice in connection with his upcoming trial testimony, according to the affidavit.
Kinkeade said during a court hearing on Monday he had never experienced anything like this before in a civil case.
"This is a serious matter that requires serious ... treatment and has serious ramifications," Kinkeade said according to court transcripts, adding that he advised everyone involved in the accusations to hire a criminal defense lawyer.
Plaintiffs' lawyer Mark Lanier during Monday's trial told the judge he was unable to question the doctor under these circumstances and requested an investigation.
Jayne Conroy, another plaintiffs' lawyer, in a statement on Tuesday said they looked forward to the results of that investigation.
"These David and Goliath trials are challenging enough for individual plaintiffs without the added worry that fact witnesses may be threatened and intimidated to protect a huge corporate defendant," she said.
During Monday's trial, defense lawyer Steven Quattlebaum of Quattlebaum Grooms & Tull told the judge there was nothing "untoward" about the conversations he and others had had with the sales rep, but added he understood the judge's concerns.
He said Swajger had solely been asked to find out if the doctor was still on good terms with DePuy ahead of his testimony. Quattlebaum did not return a request for comment.
John Beisner of Skadden Arps Slate Meagher & Flom, who represents DePuy, in a statement said he believed his team had acted appropriately toward all witnesses involved in the litigation.
"We take all our legal obligations and responsibilities very seriously, and do not believe there is any basis for these accusations," he said.
J&J won the first bellwether trial in 2014. Subsequent juries have found in favor of the plaintiffs and awarded high damages which were later scaled back to $150 million and $543 million.
The case is In re DePuy Orthopaedics Inc, U.S. Court of Appeals for the 5th Circuit, No. 17-10812.
For plaintiffs: Mark Lanier of the Lanier Law Firm

For DePuy: John Beisner of Skadden Arps Slate Meagher & Flom

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Tampering Flap Puts J&J Trial Attys Under Ethics Microscope

Oct 17, 2017 | Law360

By Jess Krochtengel

A Texas federal judge's referral to the U.S. attorney's office of witness tampering allegations in a bellwether trial over Johnson & Johnson hip implants is rare and could carry serious consequences, both inside the case and beyond, for company lawyers accused of indirectly pressuring a doctor for the plaintiffs, legal ethics experts say.

At the request of U.S. District Judge Ed Kinkeade, two FBI agents and a federal prosecutor on Monday interviewed a doctor who treated three of the six plaintiffs in the trial, according to a transcript of the day's court proceedings.

Judge Kinkeade has also requested that a sales representative for J&J's DePuy Orthopaedics Inc. unit and two Drinker Biddle & Reath LLP lawyers who represent DePuy come to Dallas to be interviewed about their conversations. He told DePuy's lawyers they may want to hire counsel for what he views as a "serious matter that requires serious treatment and has serious ramifications."

On Monday, plaintiffs' lawyers alleged a DePuy sales representative who worked with the doctor had been "peppered" by DePuy attorneys who put "big-time pressure" on him just days before the doctor was set to testify. The doctor said that as a result of the conversations with the DePuy attorneys, the sales rep told him he was worried the doctor's expected testimony could have consequences on his practice.

If an investigation validates the witness tampering accusations lodged by plaintiffs, DePuy's lawyers could face state or federal criminal charges, ethical grievances and a variety of sanctions — which could take the form of a monetary fine, a simple admonishment from the judge or even orders that could impact how the trial progresses. Yet it's remarkable and unusual for the accusation of tampering to be immediately referred to criminal prosecutors, said Dane Ciolino, a professor at Loyola University New Orleans College of Law who studies legal ethics.

Ciolino said in other cases where lawyers have been accused of improperly trying to influence witnesses, those issues are typically sorted out after the trial and mostly through disciplinary proceedings rather than in criminal investigations mid-trial.

"It seems quite remarkable he referred this to prosecutors rather than disciplinary authorities in the first instance," Ciolino said. "And to do all this in the thick of trial is even more astonishing."

The parties are nearly a month into the fourth bellwether trial in multidistrict litigation including more than 9,000 cases alleging DePuy made and marketed a defective line of metal-on-metal hip implants. The first trial ended in a win for J&J, but plaintiffs won massive verdicts in the second and third trials, appeals of which are pending before the Fifth Circuit.

Ciolino said it sounds to him like the issues could have been worked out in a more "traditional way," through cross-examination, followed by a referral to disciplinary counsel if there was probable cause of wrongdoing, or through a contempt proceeding.

"To do all this on the fly is really exceptional," he said. "It's not unheard of, but it is exceptional."

The plaintiffs say that as they were preparing over the weekend for the testimony of Dr. David Shein, something didn't seem right, and eventually, Shein told them about a conversation he'd had with the DePuy sales rep on Friday morning.

Shein testified that the sales rep — whom he has known for more than 15 years and considers a friend — was "stressed" and appeared rattled, in a way the doctor had never seen him before. Shein said the sales rep had been "henpecked" by DePuy's attorneys and was concerned about the doctor testifying in the trial.

Shein said in an affidavit the sales rep told him that "as a result of the conversations with DePuy attorneys, he was worried there could be ramifications for me in my practice in connection with my upcoming Dallas testimony." The sales rep also allegedly made a comment to Shein that he would still want a metal-on-metal hip implant.

At Monday's hearing, J&J counsel Steve Quattlebaum of Quattlebaum Grooms & Tull PLLCsaid there is nothing wrong with DePuy's counsel talking to employees of the client. The mere insinuation of impropriety "is infuriating and improper, with no facts to base it on," Quattlebaum told the judge. Quattlebaum said he was angered at the suggestion the lawyers "somehow directed the employee to go do something improper, with no facts to back that up whatsoever."

"We take all our legal obligations and responsibilities very seriously and do not believe there is any basis for these accusations," John Beisner of Skadden Arps Slate Meagher & Flom LLP, an attorney for J&J, said in a statement to Law360 on Tuesday. "We have acted appropriately towards all witnesses involved in this litigation."

Mark Lanier of The Lanier Law Firm, an attorney for the plaintiffs, told Law360 on Tuesday he now views the doctor as "tainted fruit," and said "there is nothing that can be done to change that taint."

Lanier said he hopes criminal charges would be filed if an investigation establishes what happened was witness tampering.

"If it's witness tampering, it's not only a felony and imprisonable, but it's an insult to the court, to what we stand for as lawyers, to what the justice system is all about," Lanier said. "You shouldn't be trying to influence witnesses as to what they testify and whether they testify, the intimidation to try to stop him from coming and to try to influence his testimony on metal-on-metal."

Lanier said the plaintiffs are still researching what kind of remedy to seek from the trial court, whether a stipulation, presumption, striking of the doctor's cross-examination or something else. To stop the trial would be the "grossest miscarriage of justice" and end up giving the defendants what they've wanted, he said.

Judge Kinkeade told the parties he would not jump to conclusions and wants to get more information, but that "it is certainly disturbing and disconcerting to me." Allegations of witness tampering come up "fairly regularly" in his criminal docket, but this is the first time it's happened in a civil case he presided over, the judge said.

"There's a heck of a lot of problems that this raises," the judge said.

The judge requested Drinker Biddle's Michael Zogby and Jessica Brennan come to Dallas this week to be interviewed about their conversations with the sales rep. The Drinker Biddle attorneys did not immediately respond to a request for comment from Law360 on Tuesday.

He also requested the sales rep come to Dallas to testify and instructed DePuy to ensure the sales rep retain an independent criminal defense lawyer to represent him, and told DePuy's counsel to retain lawyers if they want to.

That the judge immediately brought in the FBI and U.S. attorney's office is a sign he's looking beyond ethical violations to potential criminal wrongdoing, legal ethics expert Chuck Herring of Herring & Panzer LLP said.

"Any time a federal judge suggests criminal activity may have occurred or suggests that an inquiry should be made by the authorities, that's a very serious development," Herring said. "And him telling the parties to lawyer up is a further indication the judge thinks this a serious matter and everyone needs to take it in that vein and prepare to deal with it very seriously."

Herring said that witness tampering "seldom" comes up in civil cases and that there is no standard procedure for how to handle it because it comes up so infrequently. When he's seen the allegation in previous cases, usually it comes in the form of one side filing a motion for sanctions against the other side, and on rare occasions, he has seen a judge make referrals or have a case referred to the U.S. attorney, he said.

Even the allegation of witness tampering is uncommon in civil cases, said Kelli Hinson, head of the professional responsibility group at Carrington Coleman Sloman & Blumenthal LLP.

Hinson said the Federal Rules of Civil Procedure don't directly address witness tampering, but if the allegation was proven, it would be within the court's power to sanction the parties for bad faith conduct that results in prejudice to the judicial process.

"The trial court has pretty wide discretion to determine an appropriate sanction, but the court would have to consider what type of sanction is necessary to remedy the wrong caused by the conduct and to deter others from engaging in similar conduct," Hinson said. "There should be some nexus between the bad conduct and the sanction. In other words, the punishment should fit the crime."

Sanctions could take the form of an admonishment by the court, an award of attorneys' fees incurred by the other side, the inability to offer a particular witness or a particular claim or defense, or in severe cases, dismissal of the case, Hinson said. In general, courts should consider lesser sanctions and impose the least severe sanction necessary to achieve the purpose of the sanction, she said.

Herring said the fact-specific nature of the allegations and the variety of ethical and criminal standards the lawyers could be accused of violating make it hard to say what kind of evidence the plaintiffs would have to show to prove their assertion of witness tampering.

Lawyers generally have a fair amount of leeway in what they can say to witnesses, Herring said.

"Where you draw the line on what you do or don't do can be very fact-specific," he said. "When it steps over the line can depend on what is said, how it's said, and sometimes the conduct may even be open to different interpretations."

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault of Neblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP

The defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC and Tracie J. Renfroe of King & Spalding LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

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Judge to Bring in FBI and US Attorney After Plaintiffs Lawyer Suggests Witness Tampering in Hip Implant Trial (UPDATE)

Oct 16, 2017 | Law.com

By Brenda Sapino Jeffreys

A federal judge said he would bring in the U.S. Attorney’s Office and the FBI to interview witnesses after plaintiffs attorney Mark Lanier raised concerns Monday about possible witness tampering in a hip implant bellwether trial in Dallas.
The trial concerns hip implants made by DePuy Orthopaedics Inc., a subsidiary of Johnson & Johnson.
“This is a serious matter that requires serious—you know—serious treatment and has serious ramifications,” U.S. District Judge Ed Kinkeade of the Northern District of Texas said during the hearing in his Dallas courtroom.
Kinkeade said he would not jump to conclusions, but “it is certainly disturbing and disconcerting to me.”
The issue came up after orthopedic surgeon Dr. David Shein filed an affidavit in Alicea v. DePuy Orthopaedics Sunday night alleging that a DePuy Orthopaedics Inc. sales representative told him during a surgery-related conversation at his hospital in the Bronx on Oct. 13 that “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony.
Shein said in the affidavit that the sales rep complained to him that the lawyers were “peppering him” and the “business in Dallas was freaking [him] out.” Shein said in the affidavit that the sales rep told him DePuy lawyers had contacted him on Oct. 12 and that the conversation made him anxious.
“He said the lawyers were ‘on him like crazy.’ They were putting ‘big time pressure’ on him,” Shein wrote in the affidavit about his conversation with the sales rep.
Lanier, who is the founder of Lanier Law Firm in Houston, is lead lawyer for the six plaintiffs in the hip implant trial that began on Sept. 19. He told Kinkeade, according to a transcript of the hearing, that the information in Shein’s affidavit is very alarming.
“It is extremely concerning to me when there are requirements under the federal law, as well as state law, that witnesses not be tampered with, that—that it’s a serious felony, that it involves prison time, that it cuts to the core of who we are as a people and what our courts are about,” Lanier said.
Lanier, who had planned to put Shein on the witness stand until he learned of the information in the doctor’s affidavit, told Kinkeade he would not have Shein testify on Monday. He cited various reasons: Shein’s friendship with the sales rep, the fact that lawyers for DePuy had spoken with the sales rep, and the fact that the sales rep told Shein he still believes in metal-on-metal implants.
Lanier said it’s the kind of stuff that’s in books or movies.
“There’s no way as a lawyer I can put this witness on the stand in light of that type of pressure and in light of … that type of pressure and in light of — of that type of — intimidation, and in light of that type of settled psychological manipulation of his testimony, as I perceive it,” Lanier said.
He said it “shows a great measure of flippant disregard for this court.”
Lanier told Kinkeade he isn’t sure what relief he will request based on Shein’s affidavit.
Defense attorney Steven Quattlebaum, managing member of Quattlebaum, Grooms & Tull in Little Rock, Arkansas, did not immediately respond to a request for comment. In court, however, Quattlebaum told Kinkeade he wants to know the “whole facts,” according to the transcript.
Quattlebaum told Kinkeade he was angry Lanier insinuated it was improper for DePuy’s lawyers to talk to the sales rep, who is an employee, before Shein’s deposition.
“The insinuation that there’s some impropriety in talking to our employee, and the insinuation is that we somehow directed the employee to go do something improper, with no facts to back that up whatsoever, is what makes me angry,” Quattlebaum said in court.
Quattlebaum told Kinkeade he was in on a call with the sales rep on the afternoon of Oct. 13, hours after he allegedly spoke to Shein. But he is aware that some other lawyers did call the sales rep a few days earlier to set up the Oct. 13 call. Quattlebaum said the goal of that call was to determine from the sales rep if he still had a good relationship with Shein and if the doctor was still using DePuy products.
Kinkeade said he wants the U.S. Attorney’s Office and the FBI to interview the sale rep and any lawyer who had contact with him.
Another member of DePuy’s defense team, John Beisner, a partner in Skadden Arps Slate Meagher & Flom in Washington, D.C., said, “We take all our legal obligations and responsibilities very seriously, and do not believe there is any basis for these accusations. We have acted appropriately towards all witnesses involved in this litigation.”
Quattlebaum asked Kinkeade to issue a gag order on the witness issue “because we think that public dissemination of this information runs a serious risk of contaminating the trial and rendering a fair trial impossible.”
Lanier said he was “strongly opposed” to a gag order on the witness issue.

Kinkeade denied the motion.

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Johnson & Johnson 'remains committed' in battle against hip implant lawsuits

Oct 10, 2017 | SE Texas Record

By John Sammon

Medicinal-pharmaceutical corporate giant Johnson & Johnson Co. continues to battle more than 8,000 lawsuits made against the company over an allegedly defective hip implant device, and attorneys for the firm insist they are in the right despite continuing setbacks in a case that seems to have no end.
John Beisner, attorney for Johnson & Johnson, said the company will continue to battle the barrage of lawsuits until a fair result can be obtained.
“The company remains committed to a long-term defense of this matter,” Beisner said in a statement to The SE Texas Record.
A fourth trial in the case in a Texas federal court is underway this month in what Bloomberg media company called one of the largest multidistrict proceedings in the federal system.
The lawsuits were made against the firm over its Pinnacle Hip Implant, produced by a subsidiary arm of Johnson & Johnson called DePuy Orthopedics Inc.
Plaintiffs who filed suit against the company said they suffered physical damage from the hip implants including tissue death, bone erosion and other injuries. They contended the hip devices were designed improperly and that the company ignored the risks, Fortune reports.
Johnson & Johnson and DePuy in 2014 won the first Pinnacle case in the Northern District of Texas when the court decided the lone plaintiff, Kathleen Herlihy-Paoli, suffered because an implant had been positioned improperly, and that DePuy was not to blame.
However, additional suits were filed against the company.
In March 2016 following a two-month trial, a federal court ordered Johnson & Johnson to pay $500 million to five plaintiffs, residents of Texas, who said they were injured by the devices. Such verdicts are often reduced and in subsequent hearings the award was later cut to $151 million, Fortune reported.
In December 2016, a federal jury ordered the company to pay more than $1 billion to six plaintiffs who reside in California, who also maintained they suffered physical injury from the implant devices, Fortune reported.
Beisner asked the Dallas Division of the Northern District of Texas for a halt to a new trial set for Sept. 5 and Judge Ed Kinkeade granted a short delay until Sept. 18. Beisner said the decision to hold another consolidated trial of cases in Texas is counterproductive and instead recommended moving cases back to the courts from which they originated.
“We believe that the MDL (multi district) court committed a grave error in ruling that it has jurisdiction to hold this trial in Texas,” he said in the statement. “As a result we will be obliged to defend yet another trial that will be fraught with reversible error and will do nothing to advance the resolution of this six-year-old litigation.”
Beisner added the company will seek an equitable solution.
“We look forward to receiving guidance that will finally allow a fair, meaningful adjudication of these claims,” he said in the statement.

Beisner is a law partner with the Washington, D.C.-based firm of Skadden, Arps, Slate, Meagher & Flom LLP.

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1st Circuit won't reconsider J&J's DePuy whistleblower case ruling

Sep 27, 2017 | Reuters

By Nate Raymond

A U.S. appeals court on Wednesday refused to reconsider a ruling reviving a lawsuit claiming Johnson & Johnson's DePuy Orthopaedics Inc unit marketed defective hip replacement devices to doctors who then sought government reimbursement.
The 1st U.S. Circuit Court of Appeals in Boston denied a petition by DePuy to grant an en banc rehearing after a three-judge panel in July overturned the dismissal of the False Claims Act lawsuit against the company.
The ruling came after the Pharmaceutical Research and Manufacturers of America filed a brief supporting DePuy's appeal in which it argued the earlier decision incorrectly relaxed standards that protect companies from "parasitic" lawsuits.
The three-judge panel had held that the lawsuit sufficiently alleged it was "statistically certain" DePuy caused doctors to submit false claims for reimbursement to the federal government and New York state.
Russell Kornblith, a lawyer for the plaintiffs at Sanford Heisler Sharp, said he was pleased with Wednesday's decision.
"The original panel reached the right conclusion: The sale of defective medical devices to government health insurance programs violates the False Claims Act," Kornblith said in a statement.
DePuy, represented by Mark Seltzer of Nixon Peabody, did not respond to a request for comment.
DePuy stopped selling the metal-on-metal Pinnacle devices in 2013 after the FDA strengthened its regulations on artificial hips.
The company has since faced thousands of lawsuits blaming its hip implants, including the Pinnacle line, for injuries including tissue death and bone erosion.
J&J has faced three federal trials over the Pinnacle devices. It prevailed in one but was hit with verdicts in two others for $151 million and $502 million, after being reduced post-trial. The company is appealing.
The lawsuit before the 1st Circuit was filed in 2012 by Antoni Nargol and David Langton, orthopedic surgeons who had previously implanted Pinnacle devices in patients.
Both men claimed DePuy made false statements to the FDA about the safety of the Pinnacle devices, downplaying their failure rate and the possibility they could leak metal ions that damage tissue.
They also claimed DePuy falsely palmed off latently defective Pinnacle devices on doctors, leading healthcare providers to submit claims for reimbursement to Medicare and Medicaid for the flawed products.
The lawsuit was filed under the False Claims Act, which allows whistleblowers to sue companies on the government's behalf to recover taxpayer money paid out based on fraudulent claims.
If successful, whistleblowers receive a percentage of the recovery. The government can intervene in the lawsuits, which is typically a major boost to such cases.
In this case, the U.S. Justice Department did not intervene, leaving Nargol and Langton to pursue it themselves.
The case is U.S. et al ex rel Nargol et al, v. DePuy Orthopaedics Inc, et al, 1st U.S. Circuit Court of Appeals, No. 16-1442.
For Nargol and Langton: Russell Kornblith of Sanford Heisler Sharp
For DePuy: Mark Seltzer of Nixon Peabody

For PhRMA: David Ogden of Wilmer Cutler Pickering Hale & Dorr

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4th Bellwether Over J&J Metal Hip Implants Kicks Off

Sep 20, 2017 | Law360

By Jess Krochtengel

Six plaintiffs on Wednesday told a Texas federal jury that a money-driven Johnson & Johnson pushed a dangerous metal-on-metal hip implant into the world that it knew wouldn’t work well and that was defectively manufactured, in the fourth bellwether trial in multidistrict litigation over the devices.

In the fourth matchup between plaintiffs’ lawyer Mark Lanier of The Lanier Law Firm and J&J and its subsidiary DePuy Orthopaedics Inc. over the Pinnacle Ultamet line of metal-on-metal hip implants, six New York plaintiffs and four of their spouses allege that the devices were designed based on problematic research, made with “shoddy equipment,” that DePuy and J&J failed to provide adequate warnings about problems with the safety of the devices and made highly misleading marketing claims about the success of the product. The two most recent trials ended in massive verdicts for California and Texas plaintiffs, and J&J and DePuy defeated claims of wrongdoing in the first bellwether.

The plaintiffs claim that J&J and DePuy are liable for negligence, strict liability, fraud, negligent misrepresentation, fraudulent business acts and practices and breach of express and implied warranty, and are seeking punitive damages in a trial expected to last up to eight weeks.

In his opening statement, Lanier compared the process of the trial to a home inspection, urging the jurors to follow him as he digs beneath the surface of “fresh paint and new furniture” to reveal a litany of problems with the Pinnacle device. Lanier said that J&J started with a bad foundation — using metal-on-metal hip implants despite decades of problems — and then built up the product with shoddy equipment, making cost-saving choices that led to the product having high rates of failure in patients who ended up needing revision surgeries.

Previewing what he said would be smoking gun emails, marketing materials and J&J’s reliance on a deeply problematic study, Lanier told jurors that hip surgeons were “seduced” into using metal-on-metal implants based on lies pushed by the company to make the product seem better and more reliable. The plaintiffs allege that J&J didn’t warn surgeons or patients about the risks of metal rubbing against metal and causing microscopic metal particles to be shed into their bodies, leading to serious complications and necessitating follow-up surgeries.

“This is a case that’s about six people who trusted a doctor and they trusted the product that doctor gave them and they got a terrible result,” Lanier said.

But J&J defended the Pinnacle line of hip implants in its opening statement, with Steve Quattlebaum of Quattlebaum Grooms & Tull PLLC calling it “the best or one of the best artificial hips ever developed.” Quattlebaum drew a bright line between the metal-on-metal option that is part of the broader Pinnacle system and the metal-on-plastic and metal-on-ceramic options that he said make the Pinnacle implant “the most sought after, successful system in hip replacement that exists today.”

“The unavoidable reality is that all hip devices wear and all hip devices have revisions, for lots of different reasons,” he said.

Quattlebaum urged the jurors to think about the six hip implant recipient patients individually and to focus on what scientific data showed was reasonable at the time each patient had his or her initial surgery. He said it was the scientific data available at the time that was “seductive” — not the actions of J&J and DePuy — as the best and brightest orthopedic surgeons in the country were choosing to use metal-on-metal implants.

Although scientists have developed a stronger, more reliable plastic option that is popular today, when the implants were used between June 2007 and October 2011, metal-on-metal was seen as a reasonable choice based on its durability, he said. Just because a better product has come along doesn’t mean the product it replaced was defective, and comparing the metal-on-metal implants that the plaintiffs received to the cutting-edge plastic in use today is like comparing apples and oranges, Quattlebaum said.

This is the fourth bellwether trial involving the Pinnacle line of metal-on-metal hip implants. The first involved a single plaintiff from Montana and ended in a defense win. The second, involving five plaintiffs from Texas, ended in a $502 million verdict that was reduced to about $150 million. And the third, involving six plaintiffs from California, ended in December with a more than $1 billion verdict, later reduced to about $543 million.

J&J is pursuing appeals of the second and third verdicts in the Fifth Circuit and has alleged that the trials were marred by pretrial and trial rulings from the judge that heavily favored the plaintiffs and biased the defense. The company sought to block the fourth trial from taking place, arguing to the Fifth Circuit that the Texas federal court has no jurisdiction to oversee a trial between New York plaintiffs and the companies, which have headquarters in New Jersey and Indiana.

On Aug. 31, less than a week before the fourth bellwether was set to begin, a Fifth Circuit panel said that U.S. District Judge Kinkeade, who oversees the MDL, reached a “patently erroneous” result and clearly abused his discretion by holding that J&J and DePuy had waived their right to object to his court in Texas conducting trials for plaintiffs from other states. The panel requested — but did not mandate — Judge Kinkeade cancel the upcoming trial.

The plaintiffs sought rehearing en banc from the Fifth Circuit, but the panel on Tuesday denied the motion.

“We believe the decision to proceed with this trial directly contradicts the Fifth Circuit's determination that the MDL court committed ‘grave error’ in ruling that it has jurisdiction to hold this trial in Texas,” J&J attorney John Beisner of Skadden Arps Slate Meagher & Flom LLPsaid in a statement on Wednesday. “As a result, we will be obliged to defend yet a third trial that will be fraught with reversible error and that will therefore do nothing to advance the ultimate resolution of this six-year-old litigation.”

Beisner said that the company remains committed to the long-term defense of the matter and “looks forward to receiving further appellate guidance that will finally allow the fair, meaningful adjudication of these claims.”

Although Judge Kinkeade initially told the parties to prepare 10 cases involving plaintiffs from New York and New Jersey for the fourth bellwether, only six plaintiffs remain, all from New York, after several plaintiffs withdrew from the case and one case was dismissed on summary judgment. More than 9,100 cases remain in the MDL.

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Richard Arsenault of Neblett Beard & Arsenault, Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP, and Jayne Conroy of Simmons Hanly Conroy.

The defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC, and Tracie J. Renfroe of King & Spalding LLP.

The consolidated cases are: Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489, Barzel v. DePuy et al. case number 3:16-cv-01245, Kirschner v. DePuy et al., case number 3:16-cv-01526, Miura v. DePuy et al., case number 3:13-cv-04119, Stevens v. DePuy et al., case number 3:14-cv-01776, and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

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5th Circuit denies plaintiffs' petition for en banc rehearing in Pinnacle MDL

Sep 19, 2017 | Reuters

By Tina Bellon

A federal appeals court on Tuesday denied a petition for rehearing filed by a group of plaintiffs in the multidistrict litigation over Johnson & Johnson subsidiary DePuy's Pinnacle hip implants.
The petition had targeted an Aug. 31 ruling by the U.S. Court of Appeals for the 5th Circuit, which had denied DePuy a writ of mandamus blocking MDL Judge Ed Kinkeade in Dallas from presiding over a test trial but said the judge had "clearly abused" his discretion by hearing out-of-state cases.
A unanimous 5th Circuit panel of Judges Edith Jones, Jerry Smith and Gregg Costa denied the plaintiffs' petition for rehearing as well as a motion to vacate portions of the Aug. 31 ruling critical of Kinkeade.

The MDL Kinkeade is overseeing has some 9,300 cases pending. Plaintiffs allege the company's implants were defectively designed, causing tissue death, bone erosion and other injuries.

DePuy had sought the writ of mandamus in July to block Kinkeade from overseeing the trial initially scheduled to begin on Sept. 5 involving eight New York plaintiffs.
In the 2-1 Aug. 31 ruling, the 5th Circuit suggested Kinkeade withdraw his order for the Sept. 5 trial on the grounds that he had abused his discretion by hearing cases brought by plaintiffs from outside of Texas over the objection of DePuy.
In response, Kinkeade postponed the trial start date to Sept. 18.
Plaintiffs' lawyer Mark Lanier did not immediately respond to a request for comment on the court's Tuesday decision to deny the en banc rehearing.
John Beisner of Skadden Arps Slate Meagher & Flom, representing DePuy, in a statement said he believed Kinkeade's decision to proceed with the trial was a direct violation of the Aug. 31 circuit ruling.

"As a result, we will be obliged to defend yet a third trial that will be fraught with reversible error and that will therefore do nothing to advance the ultimate resolution of this six-year-old litigation," he said.

The trial currently underway in Dallas District Court is the fourth test trial in the MDL. Bellwether trials are used by parties to gauge damages ranges and settlement options, an approach often used in product liability cases where hundreds of people have similar claims.

The first test trial, in 2014, involved a single plaintiff from Montana and the jury cleared DePuy of liability.

Juries in the second and third trials, involving plaintiff groups from Texas and California, returned high verdicts in favor of the patients that were later reduced to $150 million and $543 million.
DePuy's appeals against those two verdicts are pending.

The case is In re DePuy Orthopaedics Inc, the U.S. Court of Appeals for the 5th Circuit, No. 17-10812.

For plaintiffs: Mark Lanier of the Lanier Law Firm

For DePuy: John Beisner of Skadden Arps Slate Meagher & Flom

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Texas Judge delays J&J Pinnacle hip implant bellwether trial

Sep 6, 2017 | Mass Device

By Fink Densford

A federal judge in Dallas has delayed a Johnson & Johnson (NYSE:JNJ) subsidiary DePuy Orthopaedics Pinnacle hip implant bellwether trial until later this month, according to a Texas Lawyer report.
The delay came after 2 of 3 judges on a Fifth Circuit Court panel refused a petition to halt the trail, but concluded that the judge had committed a “grave error” in allowing certain trials to come before him, according to the report.
The trial is the 4th bellwether in a multidistrict litigation over the allegedly defective Pinnacle hip systems.
The ruling could impact a separate case in the Fifth Circuit, according to the report, with Johnson & Johnson presenting the same venue arguments as it appeals a $1 billion verdict in its most recent Pinnacle trial.
In February, J&J’s DePuy said it was seeking a new trial after it lost a $1 billion judgment to 6 plaintiffs who sued over its metal-on-metal Pinnacle hip implant.
A Dallas jury last December found that the metal-on-metal pinnacle hip implants were designed defectively and that the companies failed to appropriately warn patients of the risks associated with the devices, awarding $32 million in compensatory damages and more than $1 billion in punitive damages to the 6 co-plaintiffs. But Judge Ed Kinkeade of the U.S. District Court for Northern Texas, as he did with a similar, $500 million verdict in a previous Pinnacle lawsuit, again slashed the verdict nearly in half.

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Divided 5th Circuit ruling casts doubt over next Pinnacle trial

Sep 5, 2017 | Reuters

By Tina Bellon

A divided federal appeals court denied Johnson & Johnson subsidiary DePuy's petition to halt proceedings in an upcoming trial over the company's Pinnacle hip implants, but also said the district judge "clearly abused" his discretion.
DePuy had asked the circuit judges for a writ of mandamus to block Dallas U.S. District Judge Ed Kinkeade from presiding over a trial starting Tuesday. Kinkeade is overseeing a multidistrict litigation over Pinnacle implants that has some 9,300 cases pending.
In a 2-1 ruling on Thursday, the U.S. 5th Circuit Court of Appeals said the requirements for the "drastic and extraordinary remedy" of a mandamus were not entirely fulfilled, as DePuy had the option of an ordinary appeal following a verdict in the trial.
Circuit Judge Edith Jones dissented on the grounds that an appeal would not provide DePuy an adequate remedy.
But the majority comprising Circuit Judges Jerry Smith and Gregg Costa also suggested Kinkeade withdraw his order for the next trial to begin on Sept. 5 on the grounds that the MDL court had abused its discretion by hearing cases brought by plaintiffs from outside of Texas over the objection of DePuy.
John Beisner of Skadden Arps Slate Meagher & Flom, representing DePuy, said he hoped Kinkeade would "abide by the Fifth Circuit's request to withdraw its order for a trial beginning Sept. 5, and thus step back from the 'grave error' the appellate court found in the MDL court's jurisdictional ruling."
Plaintiffs' lawyer Mark Lanier filed a petition on Friday for a rehearing, asking the entire 5th Circuit to vacate parts of the panel's opinion that criticized Kinkeade.
Lanier said he was hoping a hearing with the MDL's special master on Friday afternoon would clarify whether Kinkeade would proceed with the trial on Tuesday.
DePuy had sought the writ on the grounds that Kinkeade was abusing his discretion by trying cases filed by out-of-state plaintiffs. The trial scheduled for Tuesday involves eight New York plaintiffs who alleged the company's implants were defectively designed, causing tissue death, bone erosion and other injuries.
In 2012, DePuy agreed to waive its venue rights to any cases in the MDL proceeding being tried in the Texas federal court.
The first trial in 2014 involved a single plaintiff from Montana and the jury cleared DePuy of liability. But when plaintiffs began to consolidate multiple plaintiffs for the following MDL test trials, the company objected, saying it did not intend to waive its rights under such circumstances.
Despite DePuy's objections, two more trials proceeded before Kinkeade in 2016, returning verdicts that were later reduced to $502 million and $543 million.
DePuy's appeals against those two verdicts are pending.
The company asked Kinkeade to stay all further MDL proceedings, but the judge rejected the request, ruling DePuy had waived its venue objection rights.
Kinkeade cited an email exchange between MDL Special Master James Stanton and defense counsel Seth Roberts of Locke Lord in which the latter said DePuy had agreed to waive its objections to MDL cases being tried in Texas.
The 5th Circuit majority said the language of the exchange was ambiguous and there was no "clear and unequivocal" global waiver for all MDL cases.
The case is In re DePuy Orthopaedics Inc at the U.S. Court of Appeals for the 5th Circuit, No. 17-10812.
For plaintiffs: Mark Lanier of the Lanier Law Firm

For DePuy: John Beisner of Skadden Arps Slate Meagher & Flom

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5th Circ. Wants Texas Hip Implant Bellwether Axed

Sep 1, 2017 | Law360

By Jess Krochtengel

A Fifth Circuit panel has said a Texas federal judge wrongly held that Johnson & Johnson waived its objections to venue for bellwether trials in multidistrict litigation over allegedly defective hip implants and requested the court cancel a trial set to begin Sept. 5, but stopped short of ordering the judge to do so.

A two-judge majority on Thursday found U.S. District Judge Ed Kinkeade reached a “patently erroneous” result and clearly abused his discretion by holding J&J and subsidiary DePuy Orthopaedics Inc. had waived their right to object to his court in Texas conducting trials for plaintiffs from other states. It requested Judge Kinkeade vacate his ruling on waiver and withdraw his order for a Sept. 5 bellwether trial that would include eight plaintiffs from New York who allege DePuy’s Pinnacle Ultamet line of metal-on-metal hip implants caused them serious injuries.

But the panel said it would not issue a writ of mandamus requiring Judge Kinkeade to cancel the trial because J&J had not shown it has no other adequate means to attain the relief it seeks. Though the fourth bellwether trial would impose substantial costs, that’s not enough to make appeal from that trial an inadequate remedy, the court said.

Judge Kinkeade late Friday delayed the trial to Sept. 18 “in deference to the Fifth Circuit,” but did not outright withdraw the trial order, noting the plaintiffs had filed a petition for rehearing en banc.

“We’re flummoxed by the decision, shocked by the overreach, and asking for en banc consideration of the portions that are an overreach,” Mark Lanier of The Lanier Law Firm, an attorney for the plaintiffs, told Law360 on Friday.

The plaintiffs in the hip implant cases early Friday morning sought en banc rehearing from the Fifth Circuit and asked that the portion of the panel decision addressing the waiver issue be vacated, arguing it was inappropriate for the appellate panel to hold the district court erred in determining J&J had waived its venue objections.

“If the drastic and extraordinary remedy of mandamus cannot be used as a substitute for the regular appeals process, how can it be appropriate for an order denying mandamus to resolve issues on the merits that can (and should) be resolved on direct appeal?” the plaintiffs asked.

The majority held J&J limited its waiver of venue objections to the first two bellwether trials conducted by Judge Kinkeade, the first of which featured a plaintiff from Montana and ended in a defense win, and the second of which featured five plaintiffs from Texas and ended in a $502 million verdict, later reduced to about $150 million.

A third bellwether, involving six plaintiffs from California, ended in a more than $1 billion verdict, later reduced to about $543 million. J&J had objected to jurisdiction in that case, and is pursuing an appeal in the Fifth Circuit. In July, it asked the Fifth Circuit to block the fourth bellwether, arguing the Texas court has jurisdiction over only pre-trial proceedings.

“We are pleased that the Fifth Circuit has determined that the MDL court does not have jurisdiction to conduct its planned trial of the claims of eight New York plaintiffs in a Texas courtroom,” John Beisner of Skadden Arps Slate Meagher & Flom LLP, counsel for J&J, said in a statement Thursday. “We hope that the MDL court will abide by the Fifth Circuit's request to withdraw its order for a trial beginning September 5, and thus step back from the ‘grave error’ the appellate court found in the MDL court's jurisdictional ruling.”

Johnson & Johnson declined comment on the petition for rehearing and Judge Kinkeade’s order Friday.

U.S. Circuit Judge Gregg Costa concurred in the Fifth Circuit’s judgment, saying the panel should have limited its decision to a holding J&J can pursue its jurisdictional argument on appeal without issuing “unnecessary rulings.”

Judge Costa said by telling Judge Kinkeade his ruling was patently erroneous, the panel effectively granted mandamus even as it concluded the issue could be remedied on appeal. With that precedent, any future mandamus court could decide the merits of a case even when a case is not extraordinary enough to justify it, he said.

Judge Edith H. Jones partially dissented from the ruling, saying J&J and DePuy do not have an adequate remedy by appeal because they are being “forced to trial over their objections to personal jurisdiction.” She said appellate remedy is particularly inadequate because the error would be repeated if Judge Kinkeade continues to hold it can try the more than 9,300 cases in the MDL in Texas even when the plaintiffs have no connection to the state.

And for the plaintiffs grouped into the fourth bellwether, an appellate result finding the district court lacked jurisdiction would leave them with a take-nothing judgment nearly a decade after filing their cases and would send them back to square one, Judge Jones said.

“For the remaining thousands, the goal of the bellwether process will have been perverted by unreliable judgments, delayed by the appeals, and undermined when those judgments are reversed,” she wrote. “Allowing the court’s conduct of trials outside its jurisdiction to spawn such unpredictability and unfairness will harm petitioners or plaintiffs and most likely both.”

Lanier said Judge Costa “nailed it” by saying the court’s opinion should have ended after it concluded J&J has an adequate appellate remedy, and characterized Judge Jones’ ruling as an “overreach” by the appellate court.

“Contrary to a lot of speeches she gives that say the federal judiciary should not overreach, she seems intent on dictating how Judge Kinkeade runs his court,” Lanier said. “Frankly, I was stunned to see her go that far.”

U.S. Circuit Judges Edith H. Jones, Jerry E. Smith and Gregg Costa sat on the panel for the Fifth Circuit.

The Johnson & Johnson parties are represented by John H. Beisner, Stephen J. Harburg, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP and Michael V. Powell of Locke Lord LLP.

The hip implant patients are represented by W. Mark Lanier, Kevin P. Parker, M. Michelle Carreras and Arthur R. Miller of The Lanier Law Firm PC, Wayne Fisher and Justin Presnal of Fisher Boyd Brown & Huguenard LLP, Richard J. Arsenault of Neblett Beard & Arsenault, Jayne Conroy of Simmons Hanly Conroy and Kenneth W. Starr.

The case is In re DePuy Orthopaedics Inc. et al., case number 17-10812, in the U.S. Court of Appeals for the Fifth Circuit.

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Judge Postpones Hip Implant Bellwether After Panel Cites His 'Grave Error'

Sep 1, 2017 | National Law Journal

By Amanda Bronstad

A Dallas federal judge has delayed a planned Sept. 5 hip implant trial until later this month after a split federal appeals panel requested that he halt the proceedings due to his own "grave error."
In a Thursday opinion, two of three judges on a panel of the U.S. Court of Appeals for the Fifth Circuit refused to grant a petition for writ of mandamus filed by DePuy Orthopaedics Inc. to halt the trial. But two of the three also concluded that U.S. District Judge Ed Kinkeade, who is presiding over 9,300 cases alleging DePuy's Pinnacle hip implants are defective, committed a "grave error" in allowing certain trials to take place before him, including the one scheduled this month on behalf of eight New York plaintiffs.
"Despite finding serious error, a majority of this panel denies the writ that petitioners seek to prohibit the district court from proceeding to trial on plaintiffs' cases," wrote Circuit Judge Jerry Smith. "A majority requests the district court to vacate its ruling on waiver and to withdraw its order for a trial beginning September 5, 2017."
John Beisner, a Washington, D.C., partner at New York's Skadden, Arps, Slate, Meagher & Flom who represents Johnson & Johnson, DePuy's parent company, had called on Kinkeade to halt the trial, which is the fourth bellwether in the multidistrict litigation over the Pinnacle.
"We are pleased that the Fifth Circuit has determined that the MDL court does not have jurisdiction to conduct its planned trial of the claims of eight New York plaintiffs in a Texas courtroom," Beisner wrote in an emailed statement after the ruling.
Lead plaintiffs attorney Mark Lanier called it the "wildest opinion I've ever seen."
"What this small panel has tried to do is change the law in the Fifth Circuit on a mandamus record, and that's really frowned about," said Lanier, of The Lanier Law Firm in Houston, who was joined in the appeal by former U.S. Solicitor General Kenneth Starr.
In addition to this month's trial, the ruling could impact a separate case before the Fifth Circuit in which Johnson & Johnson has raised the same venue arguments in appealing a $1.04 billion verdict in the most recent Pinnacle trial. Oral argument on that appeal hasn't yet been scheduled.
"Why this court issues an order on another court's case, which is just an advisory opinion, is just absurd," said Lanier. "It's judicial activism."
Lanier filed a petition for rehearing en banc on Friday. Later that afternoon, Kinkeade ordered the trial delayed until Sept. 18.
Kinkeade appeared to anticipate the Fifth Circuit's intervention. On Aug. 25, he ordered that this month's trial would "be the final bellwether case tried in the Dallas division of the Northern District of Texas" under which both sides have waived venue.
It's an unusual turn of events for the Pinnacle litigation, in which Johnson & Johnson has appealed two other verdicts in Kinkeade's courtroom, both involving consolidated cases that led to gargantuan awards in 2016. Johnson & Johnson won the first verdict in 2014. But a second trial ended with a verdict of $502 million awarded to five Texas plaintiffs, while the third gave $1.04 billion verdict to six California plaintiffs.
Johnson & Johnson has argued that Kinkeade lacked jurisdiction over the trials involving California and New York plaintiffs. MDL judges are assigned to oversee pretrial matters with the intention of sending cases back to their original courts for trial. But defendants often waive that right under the U.S. Supreme Court's 1998 holding in Lexecon v. Milberg Weiss Bershad Hynes & Lerach, which allows bellwether trials to proceed before an MDL judge.
Johnson & Johnson claims it waived that right as to the first and second trials, but not the third or fourth. Plaintiffs' attorneys have insisted that Johnson & Johnson agreed to a global waiver over all the trials.
Here's a breakdown of the Fifth Circuit's decision: Smith and Edith Jones, both Ronald Reagan appointees, found that Kinkeade abused his discretion in finding that Johnson & Johnson had waived venue for all trials in the Pinnacle MDL. "That was grave error," Smith wrote. Addressing an issue of first impression, he wrote that a Lexecon waiver must be "clear and unambiguous." But Smith and Jones parted on whether to grant mandamus. Jones opted to do so. "There are numerous ongoing ramifications of the court's erroneous decision that harm not only these petitioners but, importantly, the plaintiffs in these 9,000+ cases," she wrote. "For the remaining thousands, the goal of the bellwether process will have been perverted by unreliable judgments, delayed by the appeals, and undermined when those judgments are reversed." But Smith sided with Circuit Judge Gregg Costa, a Barack Obama appointee, that Johnson & Johnson's petition shouldn't be granted because it could raise the matter in an appeal of a potential verdict in the fourth bellwether trial.
Costa added that the panel shouldn't even have decided the merits of Johnson & Johnson's petition. "After being told by a court of appeals that it reached a 'patently erroneous' result, what district court is going to go forward with the trial petitioners are trying to prevent?" he wrote. He also raised concerns that the majority's holding on venue gives "more power in the hands of appellate judges rather than the trial judge who has lived with the case for six years and knows the ins and outs of the parties' representations."

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Guest Post – Before the Flood: Fifth Circuit Oral Argument on Writ of Mandamus From Pinnacle Hip Implant MDL

Aug 28, 2017 | Drug and Device Law Blog

By Curtis Waldo

Today’s guest post is by Reed Smith Houston office associate Curtis Waldo. Given the Noachic weather down there recently, one might ask “where’s Waldo?” The answer is safe and sound, if not quite high and dry. Curt is really dedicated – we offered him more time, but he said he didn’t need it. In this post, Curt is acting the part of our on-the-scene reporter from last week’s Pinnacle Hip mandamus hearing before the Fifth Circuit. Since things might move rather quickly (weather permitting) we wanted to bring his report to our readers ASAP. As always our guest posters are 100% responsible for the content of their posts. Curt deserves all the credit, and any blame, for what follows.
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First, thank you for all the support and well wishes sent to those of us in Southeast Texas riding out Hurricane Harvey. It is a scary and challenging time, but we will recover. Two days before Harvey’s arrival, as John Sullivan posted last week, a Fifth Circuit panel in Houston hosted a fascinating oral argument on the writ of mandamus filed by defendants in the Pinnacle hip implant litigation. As a Reed Smith associate who works three blocks from the courthouse, I was fortunate enough to attend.
The writ has been covered by this blog here and here. In sum, there are two issues before the court: (1) did the district court err in holding defendants waived their personal jurisdiction rights?, and (2) if the district court did err, is it the kind of error that warrants the “extraordinary remedy” of a writ of mandamus? The oral argument was divided about 50-50 between these two questions. Defendants argue they did not waive their personal jurisdiction rights; plaintiffs argue they did. Defendants argue a writ of mandamus is appropriate; plaintiffs argue it is not. The panel was comprised of Judges Jerry Smith, Edith Jones, and Gregg Costa.
First to argue was John Beisner of Skadden Arps for defendants. Mr. Beisner began with an analogy: Your acquaintance invites you to dinner once. You agree. Your acquaintance invites you to dinner a second time. You agree. By agreeing to attend two dinners, have you now agreed to attend all dinners that may be called by the acquaintance in the future?
As tends to happen at oral argument, the judges wasted little time in interrupting. Judge Smith: Even if this was error, why a writ of mandamus? Defendants could wait until the trial concluded and appeal the jurisdiction waiver at that time.
Mr. Beisner’s answer was twofold: (1) why waste everyone’s time with an unnecessary trial if the appellate court can decide the issue at the outset, and (2) if plaintiff’s waiver theory is believed, defendants have waived their personal jurisdiction rights in 9,300 pending cases, which is exactly the sort of situation that is “not effectively reviewable” by a normal appeal. As Judge Jones later pointed out, if the plaintiffs and defendants spend $50 million trying cases that are later obviated on appeal, does that $50 million not come straight from the pockets of plaintiffs and defendants, and right into the pockets of lawyers?
While this argument might make sense to anyone who is not a lawyer, Judge Costa pointed out rightly the slippery slope down which that argument might take them—should appellate courts step into district court proceedings at any stage where their input would be dispositive? One could imagine such a system, but it is not the one we have in the federal courts. Surely, Judge Costa asked, avoiding expense by itself is not enough to justify mandamus relief? Mr. Beisner rightly avoided this logical sinkhole and clarified that no, it is not merely the avoidance of expense but also the likelihood of recurrence, which here is profound given the upcoming bellwether trials and thousands of other cases on the horizon where defendants have allegedly waived their constitutional rights.
Moving on to the waiver issue, Mr. Beisner framed the issue as revolving around the interpretation of a single email sent by defendants’ counsel in December 2014. By agreeing “to allow the Court to select the next round of bellwether cases,” surely defendants were not agreeing to waive their right to object to personal jurisdiction in all 9,300 cases in the MDL and effectively agreeing that all 9,300 cases could be tried in Texas. This, Mr. Beisner correctly emphasized, was simply not how the MDL process works. The MDL system is for pre-trial purposes only.
Let us take a moment to consider that in a given day, we may send 100 emails or more, some of which we put more thought into than others. I have never had one of my emails quoted at length in appellate briefs and dissected by a panel of Fifth Circuit judges, but I can’t imagine it is a good feeling.
Mr. Beisner had to explain why the email at issue referred to “bellwether cases,” and not only the bellwether case that would be tried. He clarified that the case(s) to be tried in a single bellwether trial came from a larger pool of cases (but still not the 9,300 in the MDL), and it was this slightly larger subset that the email was referring to. The judges appeared both intrigued and confused at the system used by the district court to select bellwether cases. I thought Mr. Beisner made his point, but it is hard to say. In any event, Mr. Beisner came back to his take-home message: to waive one’s constitutional rights, surely such waiver must be clear and unambiguous, which here it was decidedly not. Overall, the judges’ questions of Mr. Beisner on the waiver issue were not nearly as hard-hitting as the questions on the propriety of mandamus.
Next it was plaintiffs’ turn, for which plaintiffs turned to Kenneth Starr—former D.C. Circuit judge, solicitor general, law professor, Clinton investigator, and Baylor non-investigator. Mr. Starr began his argument by quoting the All Writs Act from 1789. Unsurprisingly, the panel did not let him finish his quote, and Judge Smith injected with the first question, which similar to his first question during Mr. Beisner’s argument cut to the chase: Just what exactly are plaintiffs saying defendants waived? Mr. Starr’s response was blunt: in theory, defendants had waived their right to object to personal jurisdiction in all 9,300 MDL cases. Mr. Starr hedged by saying this was only in theory, and plaintiffs did not plan to try 9,300 cases in Texas. In reality, per Mr. Starr, this was only about the two bellwether trials set in the Northern District of Texas. Despite Mr. Starr’s reassurances, his answer about the scope of the purported waiver seemed to make the panel uncomfortable.
Judge Jones took the opportunity to highlight what was really at stake—the big “M”. While she did not say so explicitly, what is really “unreviewable” is the shift in momentum that occurs when a big verdict comes in while an appeal is pending. Mr. Starr fought back: This isn’t about momentum or settlement; this is about defendants trying to cut in line. While the law may be under-developed on the issue of what contacts in a direct file case are sufficient to allow for jurisdiction, mandamus is not the proper vehicle to develop the law. What is at stake, according to Mr. Starr, is our system of permitting trial courts to conduct trials, and leaving appeals for a later, orderly process.
Mr. Starr got out his talking points on his waiver argument, but it was hard to say he made any impact on the judges here. Perhaps sensing that his stronger point was the impropriety of mandamus, Mr. Starr highlighted that defendants had an adequate remedy (they could appeal!), and the waiver issue was not so “clear and indistinguishable” as to justify mandamus. Moreover, Mr. Starr brought up (for the first time by anyone) that a trial was actually set to start in September. Lawyers and witnesses were ready to go, and his clients wanted their day in court. Judge Jones countered that while plaintiffs may want their day in court, it would do them no good to have their verdict overturned a year later.

Ultimately it was a fascinating hour of argument—the waiver issue appears to revolve around a couple sentences in a CMO and a lawyer’s email from three years ago. The mandamus issue cuts to the core of what role appeals courts should play in the federal system. And overriding all of the argument was the judges’ curiosity and at times bafflement at the MDL system. MDLs are supposed to encourage efficiency and coordination, but how do we achieve them while at the same time serving other purposes of the judiciary such as a deliberative appeals process, consistency, and finality? What role should the court assign practical litigation considerations such as settlement momentum? The courtroom was packed with law clerks and at least one district court judge, and the atmosphere of the courtroom had an academic and suspenseful quality. Given the upcoming trial date, we should expect a decision soon.

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It’s All in the Draw: Ken Starr Tangles with Judge Edith Jones in J&J Hip Implant Mandamus

Aug 25, 2017 | Texas Lawbook

By Mark Curriden

Appellate law experts widely agree that they can predict how many cases will be decided at the U.S. Court of Appeals for the Fifth Circuit when the panel of three judges are announced.
Several seasoned appellate lawyers say Thursday’s writ of mandamus hearing regarding the hip implant litigation involving Johnson & Johnson’s DePuy Orthopaedics maybe the perfect example.
Plaintiffs’ lawyers battling J&J in a multidistrict litigation received what appeared to be a pair of openly hostile judges who seemed ready to take the extraordinary step of stopping U.S. District Judge Ed Kinkeade of Dallas from moving forward with more bellwether trials, including one trial that is scheduled to start in two weeks.
Corporate lawyers and plaintiffs’ attorneys across the country are monitoring the mandamus proceeding closely.
“This is an important case just because of how big it is,” says David Coale, a partner at Lynn Pinker Cox & Hurst. “There are thousands of plaintiffs and billions of dollars at stake. The future of Johnson & Johnson is at stake.”
The fact that the case involves two conservative icons who openly traded multiple jabs at each other during 30 minutes of oral argument only added to the drama.
Judge Edith Jones said Judge Kinkeade is using a “very odd process” and that his selection of which of the 9,300 individual cases to use in the bellwether trials “comes as a matter of some concern.”
In fact, Judge Jones expressed concern that J&J would have to spend tens-of-millions of dollars in legal fees fighting the jury trials only to have the verdicts reversed a decade from now by the U.S. Supreme Court. She said Judge Kinkeade’s process might allow a “momentum to build” that forces the defendant to settle the cases that may be fatally flawed and eventually reversed.
“They could blow $50 million like that (snapping her fingers) before the Supreme Court grants or denies cert,” Judge Jones stated.
“With all due respect, your honor, that’s not the law of the land,” former U.S. Solicitor Ken Starr, who represents 9,300 plaintiffs, responded.
Starr told Judges Jones, Jerry Smith and Gregg Costa that they could only grant mandamus in extraordinary situations and this is not one of them.
“Even if you think that [Judge Kinkeade] committed error – and we do not – this does not come close to rising to be beyond dispute,” Starr argued.
Starr pointed out that J&J has appealed two bellwether jury verdicts against the company to the Fifth Circuit, and they are pending. He noted that J&J asked the three-judge panel hearing the direct appeal to expedite their handling of the appeal, but that three-judge panel declined.
Judge Jones responded that she didn’t know anything about that other panel or why those judges made their decision.
“Two of the three judges – Jones and Smith – have track records that put them on the side of the court that is more likely to grant mandamus,” says Coale, who is an expert on the Fifth Circuit and author of the popular appellate blog, 600Camp.com. “Judge Smith and Judge Jones seem to have concern that potential error here is magnified and thus justify mandamus review because of the number of cases involved.”
In March 2016, a Dallas federal jury awarded $502 million to five Texans who claimed they suffered serious, chronic and painful medical problems caused by the Pinnacle metal-on-metal hip implants. Judge Kinkeade later reduced the judgment to $113 million, citing damage award caps under Texas law.
In December, a second Dallas jury ordered New Jersey-based J&J to pay another $1 billion to another six individuals – those all from California.
John Beisner, a partner at Skadden, Arps, Slate, Meagher & Flom and representing J&J, said Judge Kinkeade has overstepped his legal authority by conducting additional bellwether trials.
“We are talking about a court trying cases that it has no business trying,” he told the judicial panel.
Beisner argued that Judge Kinkeade believes he “is no longer constrained by the MDL statute or personal jurisdiction principles and can order trials of as many cases as it chooses instead of remanding these cases to courts of proper jurisdiction, as required by the MDL statute and basic jurisdictional principles.”
Starr pushed back that the decision to conduct the MDL in Dallas was pushed by J&J because the company’s lawyers thought Dallas was a more conservative jurisdiction when finding liability and awarding damages. He said J&J essentially waived its rights to conduct the bellwether trials elsewhere.
“This was their choice on forum – it wasn’t ours,” Starr argued. “We, the plaintiffs, are giving up considerable rights to take the cases to Dallas. Our colleagues around the country said, ‘Have you lost your mind?’”
“It doesn’t seem right that they have to be forced into group trials,” Judge Jones shot back. “Why can’t they back out on their waiver?”
“Because a deal is a deal,” Starr responded. “This was the deal. This is the way the MDL practice works around the country.”
Starr said that many of the plaintiffs are from more friendly jurisdictions and would like to try their cases in their hometowns.
Judge Jones responded that those plaintiffs might get to do just that. In a barely audible voice, Starr replies that he thinks the full en banc court would see it differently – a statement only someone of Ken Starr’s prominence could get away with.
Beisner argued that J&J only agreed to bellwether trials involving one plaintiff at a time.
“From the beginning, petitioners’ position has been that true bellwether trials should involve individual plaintiffs, not consolidated trials, to avoid confusing juries and to generate reliable information regarding how juries perceive the strength of various claims and defenses,” Beisner stated in briefs. “When it became clear that the MDL court intended to continue trying consolidated cases, petitioners decided to stop consenting to trials.”
But Starr said the mandamus petition is simply J&J getting desperate.

“Let me be blunt,” Starr argued. “They knew what they were doing. They don’t like losing. Who does? And they will find away [out], including a writ of mandamus.”

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Oral Argument before the Fifth Circuit Starts in a Couple of Hours on the Writ of Mandamus Filed in the Pinnacle Hip Implant Litigation

Aug 24, 2017 | Drug & Device Law Blog

By John Sullivan

As we publish this post, lawyers in the Pinnacle Hip Implant MDL are gathering in the Bob Casey Courthouse in Houston or in coffee shops, breakfast cafés or law offices nearby awaiting the argument to come. At 10:00 a.m., the arguing starts. The Fifth Circuit will officially begin to consider whether to issue a writ of mandamus telling the Pinnacle Hip Implant MDL Court in Dallas that it cannot exercise personal jurisdiction over the upcoming September bellwether trial involving eight New York plaintiffs. The Fifth Circuit will tackle the substance of the appeal—did defendants waive their personal jurisdiction defense as to those eight cases and, in fact, as to all cases in the MDL when they gave a waiver in connection with the first two bellwether trials? Maybe more important, the Fifth Circuit will tackle procedure—are these the type of rare circumstances that require it to issues a writ of mandamus?
We first posted on this petition to the Fifth Circuit on August 8. Defendants’ petition argued—fairly convincingly—that the context of their waivers, and the language of the waivers themselves, made clear that they applied only to the cases selected for the previous bellwether trials that were upcoming at the time that the waivers were made, and not to all MDL cases. (Here is a copy of the petition.) The defendants’ petition challenged an order issued by the MDL trial holding that the waivers applied more broadly, encompassing all future MDL cases, even (seemingly) those that had not even been filed yet. (Here is the trial court’s opinion.)
Since our first post, the plaintiffs’ filed an opposition brief, and the defendants have since filed a reply brief.
Plaintiffs’ response brief is confusing at times. It argues (at 19) that MDL courts can exercise the personal jurisdiction necessary to conduct bellwether trials with the consent of the parties. Well, yes. With the consent of the parties. But the existence of consent is the very issue being considered by the Fifth Circuit. Plaintiffs’ response also argues (at 18) that an MDL court’s “direct-file order”—an order that allows plaintiffs to file complaints directly in the MDL court even if the underlying claims have no connection to the state in which the MDL court sits—allows it to exercise personal jurisdiction over those directly-filed cases and to conduct trials. No it doesn’t. Courts can’t create personal jurisdiction that otherwise did not exist simply by issuing an administrative filing order. On “waiver,” at one point plaintiffs’ opposition states (at 5) that defendants had previously explained that their waiver for the second bellwether trial was “in order to allow the court to select the next round of bellwether cases.” Plaintiffs then just let that phrase lie there out in the open, essentially making defendants’ argument for them.
Defendant’s reply brief misses none of this, addressing all these seeming missteps. It also turns some of plaintiffs’ arguments in defendants’ favor. For instance, plaintiffs argue that only two cases address the states’ contacts that should be considered in a direct-file case, claiming that both cases were decided wrongly. Defendants highlight (at 1), however, that this is the precise type of lack of guidance that requires the Fifth Circuit to weigh in. Defendants’ reply brief (at 2) explains that such guidance would assist not only in the upcoming Pinnacle Hip Implant bellwether trials, but also in future Pinnacle bellwether trials and other future MDL proceedings in the Fifth Circuit, as well as dispose of a current Pinnacle appeal. Most important, defendants’ reply brief highlights (at 6) the strict standard for finding a waiver of personal jurisdiction: “a clear and unambiguous showing of a deliberate relinquishment of a known right.” Armstrong v. LaSalle Bank Nat. Assoc., 552 F.3d 613, 615 (7th Cir. 2009). Under this standard, it’s hard to see how the waivers by defendants could ever be reasonably interpreted to apply broadly to all MDL cases.

The Fifth Circuit will test and probe all of these issues and arguments later this morning. It will likely be a fascinating back-and-forth. Now, as with any writ of mandamus, this is a long shot. But personal jurisdiction is a hot button issue right now. And the Fifth Circuit’s decision could affect many cases, as this MDL trial court has a penchant for arranging incredibly large multi-plaintiff bellwether trials. Regardless, one thing that we are reasonably sure of is that the Fifth Circuit will rule quickly. The next bellwether trial is only a couple of weeks away. And so we expect to be posting on the Fifth Circuit’s decision soon.

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Johnson & Johnson seeks to have federal judge banned from bellwether trial

Aug 18, 2017 | Southeast Texas Record

By Glenn Minnis

Johnson & Johnson has petitioned the U.S. 5th Circuit Court of Appeals to remove a federal court judge from adjudicating over a fourth bellwether trial stemming from a dispute involving metal-on-metal hip implants that have already cost the company nearly $1 billion in judgment payouts.
In its filing, Johnson & Johnson and its DePuy Orthopaedics unit argue that U.S. District Judge Ed Kinkeade only has legal authority and jurisdiction to preside over pretrial proceedings related to multidistrict litigation in Texas involving local residents.
Kinkeade is scheduled to serve as the judge in a federal trial slated to commence on Sept. 5, where nine plaintiffs from New York are set to go on trial. Kinkeade has already presided over the first three bellwether trials, where it was alleged DePuy’s Pinnacle Ultamet line of hip implants had defects.
The second trial centered on five plaintiffs from Texas and ended with in a $502 million verdict that was later reduced by roughly 70 percent. The third and most recent verdict ended with six plaintiffs from California securing a $1 billion verdict that was later cut nearly in half.
J&J has appealed the outcomes, insisting that a series of pretrial rulings administered by Kinkeade were “rife with legal and evidentiary errors,” its petition to the court stated.
“I’d like to refer you to the company’s legal filing, which lays out our company’s position on this matter, DePuy staffer Beth Richek told The Record in an email.
Plaintiff attorney Mark Lanier of the Lanier Law Firm has insisted his clients want to move forward with the scheduled proceedings, characterizing J&J’s criticisms of Kinkeade as nothing more than a stall tactic.
“This is J&J’s third effort to mandamus Judge Kinkeade,” Lanier was quoted by Law360. “It should be as futile as the prior efforts. J&J needs to address their culpability and quit trying to delay and run from the court.”

Johnson & Johnson parties are represented by John H. Beisner, Stephen J. Harburg, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP and Michael V. Powell of Locke Lord LLP, Law360 reports.

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J&J Urges Halt to Hip Implant Trials in Dallas

Aug 17, 2017 | Texas Lawyer

By Amanda Bronstad

After losing hip implant verdicts of $502 million and $1.04 billion, it's no surprise that Johnson & Johnson's DePuy Orthopaedics Inc. doesn't want to go to trial again next month.
But what it does want is a bit unusual.
In court filings this month, Johnson & Johnson attorney John Beisner has sought to halt a Sept. 5 trial, but he also wants to remand more than 9,300 of the products liability cases pending in Dallas over DePuy's Pinnacle device back to the courts from whence they came.
In a petition for writ of mandamus, Beisner, a Washington, D.C., partner at New York's Skadden, Arps, Slate, Meagher & Flom, has asked the U.S. Court of Appeals for the Fifth Circuit to halt the upcoming trial of eight plaintiffs, all from New York, scheduled to take place before U.S. District Judge Ed Kinkeade. He's raising the same argument in prior writ petitions and in the pending appeals of the two prior verdicts: The cases don't belong in Kinkeade's courtroom.
"In short, the MDL court has decided that it is no longer constrained by the MDL statute or personal jurisdiction principles and can order trials of as many cases as it chooses instead of remanding these cases to courts of proper jurisdiction, as required by the MDL statute and basic jurisdictional principles," Beisner wrote.
"Left unchecked, these rulings would encourage other MDL courts to stretch their authority to try claims, regardless of the relevant contacts with the forum or petitioners' consent."
But plaintiffs attorney Mark Lanier, anticipating Johnson & Johnson's venue fight, moved last month to remand some, but not all, of the cases for trial. He argued that cases brought in California and New York could use pretrial rulings Kinkeade has already made involving those state laws.
"This is a case where there are over 9,000 plaintiffs, and most of them are elderly," said Lanier, of The Lanier Law Firm in Houston. "They're hip implants. And what DePuy has said is that it will not settle any of these cases. So if J&J/DePuy won't settle any of them, and we have to try them, we need to come up with some trial schedule where we can get at least to the older people before they die."
MDL judges are assigned to oversee pretrial matters, but the idea is for them to send cases back to their original courts for trial. In court papers, Lanier is pushing for Kinkeade to oversee trials in other courts. Other MDL judges have done that in a pelvic mesh trial against Boston Scientific and in a pending trial over the blood thinner Xarelto, he wrote.
He called Johnson & Johnson's arguments a case of "buyer's remorse," particularly since the last two verdicts have come from consolidated trials, a big reason why the awards were so large. Johnson & Johnson, he wrote, agreed to waive all venue concerns set forth by the U.S. Supreme Court's 1998 holding in Lexecon v. Milberg Weiss Bershad Hynes & Lerach.
"Petitioners should not be permitted to rewrite history simply because they are dissatisfied with the outcomes of the last two bellwether trials," wrote Lanier, who has partnered with former U.S. Solicitor General Kenneth Starr in the plaintiffs' response filed on Monday to the writ petition. "Petitioners clearly consented to the district court's personal jurisdiction."
That's not true, wrote Beisner in a reply filed Thursday. He said Johnson & Johnson only consented to the first two bellwether trials, the first of which involved a single plaintiff.
"From the beginning, petitioners' position has been that true bellwether trials should involve individual plaintiffs, not consolidated trials, to avoid confusing juries and to generate reliable information regarding how juries perceive the strength of various claims and defenses," he wrote. "When it became clear that the MDL court intended to continue trying consolidated cases, petitioners decided to stop consenting to trials."
And that's why Beisner now insists that all the cases — not just those in California and New York — should be remanded because Kinkeade doesn't have its consent to hold trials, according to Johnson & Johnson's response to Lanier's remand request.
Beisner also gave an alternate motivation for why the plaintiffs are focused on remanding to just California and New York: Those states have uncapped punitive damages.

"Plaintiffs' proposal for selective remand for specific cases from California and New York is a blatant attempt to manipulate the MDL process for strategic advantage," Beisner wrote. "Simply put, plaintiffs are hoping to ring up large verdicts – regardless of whether they would survive appeal – in an effort to force a settlement unrelated to the merits of any of the cases in this litigation.

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Personal Jurisdiction Moves Front and Center in the Pinnacle Hip Implant MDL

Aug 8, 2017 | Drug & Device Law Blog

By John Sullivan

Posts on personal jurisdiction, or the lack of it, have been all over this blog ever since the Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court. Something similar happened three years ago after the Supreme Court decided Daimler AG v. Bauman. Together, these two decisions establish that federal courts are not empowered to find a reason to assert personal jurisdiction simply because the defendant is a large company doing business nationally. General jurisdiction requires the state in which the federal court sits to be the defendant’s “home,” meaning that it was incorporated there or has its principle place of business there. Specific jurisdiction requires that the very transaction from which the plaintiff’s claims arose involve the state in which the federal court sits. Otherwise, the court should dismiss the case. These decisions hold the promise of virtually eliminating litigation tourism.
But the plaintiffs in the Pinnacle Hip Implant MDL are trying to resurrect it, if only in their own litigation. The MDL is pending in federal court in Dallas. And yet the MDL court recently held, seemingly, that it can exert personal jurisdiction against the defendants and conduct trials in every case before it, even those that have no connection to Texas.
As many of us know, MDL courts have jurisdiction over the many cases that are transferred to them, but only for pretrial purposes. The transfer does not create personal jurisdiction for trial. Cases over which the MDL court does not have such personal jurisdiction must be transferred for trial back to the originating district court—or an appropriate district court that can exert personal jurisdiction. 28 U.S.C. 1407(a).
So, how is the MDL court doing this? Well, the lack of personal jurisdiction defense is waivable. And that’s where the MDL court is hanging its robe. It ruled in its June 28, 2017 decision that the defendants waived their defense of lack of personal jurisdiction—and not just for cases already tried, but (seemingly) for every Pinnacle hip implant case that has been filed and will be filed and that makes its way to the MDL. The defendants made this perpetual waiver, according to the MDL court, during proceedings before the special master, who at the time was working to arrange the first and second bellwether trials.
The defendants vehemently disagree. They say that their waiver, given the setting and the very language that they used, was limited only to personal jurisdiction as to the cases involved in the first and second bellwether trials, not all cases and forever. They believe this so strongly that they have filed a petition for a writ of mandamus to the Court of Appeals for the Fifth Circuit, asking that court to order that the MDL Judge cannot exercise personal jurisdiction in any of the eight cases with New York plaintiffs that the MDL court scheduled for the next bellwether trial, which starts in September.
It’s a petition for a writ of mandamus, so from the start defendants’ chances of victory are slim. But, last year, even in losing a petition for a writ of mandamus on another issue, the defendants got one of the Circuit Court judges (in a concurring opinion) to say that the MDL judge got it wrong. We’ll see what happens here. Plaintiffs must respond by the 14th. And the Fifth Circuit will almost certainly rule before September 5, when this next multi-plaintiff bellwether trial is set to begin.

The Pinnacle hip implant litigation is never without intrigue.

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J&J, DePuy Fight Hip Implant Claims Ahead Of 4th Bellwether

Aug 2, 2017 | Law360

By Michelle Casady

Staring down a fourth bellwether trial over its Pinnacle Ultamet line of metal-on-metal hip implants, Johnson & Johnson on Tuesday told a Texas federal judge it can't be held liable for products made by subsidiary DePuy Orthopaedics.

The company and its DePuy Orthopaedics Inc. unit argued for an early win in five separate motions for summary judgment filed Tuesday. DePuy told the court that though the seven plaintiffs for the bellwether are from New York, New Jersey and Indiana law should apply because those are the home states of the defendant companies.

In J&J's motion for summary judgment filed Tuesday, the company argued that because it doesn't manufacture, distribute or sell the implant, it can't be held liable for claims related to the product, saying a 2016 ruling from the New York Court of Appeals “makes it absolutely clear” that's the case. As for the hip implant patients' fraud claims, J&J argued those, too, should be dismissed because they haven't identified “any misrepresentations made by J&J upon which they relied.”

In a previous bellwether, the court denied a similar motion from J&J, holding there was evidence that it had “benefited financially from the sale of the Pinnacle Device,” and “cleared” DePuy's manufacture and sale of the product.

“J&J respectfully urges the Court to revisit that conclusion,” the motion reads. “After all, as other courts have held, such regular interaction between a parent company and one of its subsidiaries does not turn the parent into a 'seller' or 'manufacturer' of the subsidiary’s product.”

The trial is set to begin Sept. 5 before U.S. District Judge Ed Kinkeade. The first bellwether involved a sole plaintiff from Montana and ended in a defense verdict. The second involved five plaintiffs from Texas and ended in a $502 million verdict, later reduced to about $150 million, and the third involved six plaintiffs from California and ended in a more than $1 billion verdict, later reduced to about $543 million. J&J has appealed the judgments.

In a separate motion filed Tuesday, J&J argued both that it was entitled to summary judgment on the patients' punitive damages claims, and that it has the right to choose to have New Jersey law apply for J&J and Indiana law apply for DePuy, because those are the home states of the defendants. New Jersey caps punitive damages at either five times compensatory damages or $350,000, and Indiana law caps them at three times compensatory damages or $50,000.

“If the Court applied New York law to plaintiffs’ punitive damages claims, it would significantly impair these states’ interests in striking their own balance between the need to regulate and deter misconduct within their borders, while protecting their corporate citizens from potentially crushing liability,” J&J argued.

Additionally, the plaintiffs can't recover punitive damages on their claims because New Jersey law bars punitive damages in cases like this where the product was approved or licensed by the U.S. Food and Drug Administration, and so it should be granted summary judgment on those claims, J&J told the court.

J&J argued the strict liability design defect claims the hip patients have brought also fail, because they presented no evidence of a “safer alternative design,” as required under New York law. The hip patients' theory that metal hip implants with ceramic or polyethylene liners are superior fails because those are actually different products, and not the “functional equivalent of metal-on-metal implants,” J&J and DePuy told the court.

In another motion, J&J argued it was entitled to summary judgment on the hip patients' express warranty claims because there is no evidence of a “particular fact or promise capable of giving rise to an actionable express warranty.” Under New York law, the company argued, to prove a breach of an express warranty there must be evidence of an “affirmation of fact or promise made,” and the plaintiffs in this case haven't shown that's the case.

The court should also grant DePuy an early win on the manufacturing defect-based claims, it argued in another motion for summary judgment. That DePuy manufactured the Pinnacle Ultamet devices with citric acid instead of nitric acid is actually a decision to manufacture the products uniformly, and cannot be a manufacturing defect, it argued in attacking the hip patients' claim. The patients had argued that decision showed that DePuy “deviat[ed] from their own specification[s].” Additionally, there's been no evidence that using citric acid instead of nitric affected the implant or caused any injury, they argued.

Attorney for the patients Mark Lanier, of The Lanier Law Firm PC, told Law360 on Wednesday there's no merit to the arguments J&J made for summary judgment.

“I think that honestly for the people who bill by the hour it was a great use of their time. The main thing that it's going to do is just use up our time in responding,” he said, speculating that may have been the point in filing the motions. “I don't think they will be granted, I would be shocked if they were granted, and I don't think they're well based in law or fact. But they're certainly going to make work for us.”

Counsel for J&J was not available to comment Wednesday evening.

The Johnson & Johnson parties are represented by Stephen J. Harburg, John H, Beisner, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLPand Michael V. Powell of Locke Lord LLP.

The patients are represented by W. Mark Lanier, Michael R. Akselrud and Paul R. Cordella of The Lanier Law Firm PC; Richard J. Arsenault of Neblett Beard & Arsenault; Jayne Conroyand Laura L. Fitzpatrick of Simmons Hanly Conroy; Larry Boyd, Wayne Fisher and Justin Presnal of Fisher Boyd Johnson & Huguenard LLP; Laura L. Fitzpatrick of Simons Hanly Conroy LLC; Thomas J. Preuss of Wagstaff & Cartmell LLP; Rosemarie Riddel Bogdan of Martin Harding & Mazzotti LLP; Thomas R. Anapol of Anapol Weiss; and Seth Katz of Burg Simpson Eldredge Hersh & Jardine PC.

The case is Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489, in the U.S. District Court for the Northern District of Texas.

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J&J Wants 5th Circ. To Block Fourth Hip Implant Bellwether

Jul 26, 2017 | Law360

By Jess Krochtengel

Johnson & Johnson on Tuesday asked the Fifth Circuit to block a Texas federal judge from presiding over a fourth bellwether trial involving metal-on-metal hip implants, arguing the Texas court has jurisdiction only over pretrial proceedings as part of multidistrict litigation.

The company and its DePuy Orthopaedics Inc. unit are trying to block a Sept. 5 trial before U.S. District Judge Ed Kinkeade involving nine New York plaintiffs, arguing the MDL court doesn’t have jurisdiction to conduct another trial involving non-Texas residents and it faces “irremediable injury” if the fourth trial moves forward as scheduled.

Judge Kinkeade has presided over three previous bellwether trials alleging defects in DePuy’s Pinnacle Ultamet line of hip implants: the first involved a sole plaintiff from Montana and ended in a defense verdict, the second involved five plaintiffs from Texas and ended in a $502 million verdict later reduced to about $150 million and the third involved six plaintiffs from California and ended in a more than $1 billion verdict later reduced to about $543 million. J&J has appealed the judgments and has claimed Judge Kinkeade made a series of prejudicial rulings “rife with legal and evidentiary errors.”

J&J argues Judge Kinkeade wrongly held in a June 28 order the parties had unequivocally waived objections to personal jurisdiction as part of the bellwether trial procedure for the MDL, which includes more than 9,300 cases. Appealing that ruling, J&J told the Fifth Circuit in a petition for writ of mandamus it consented to jurisdiction only for two bellwether trials, not for any subsequent trials.

“The MDL court’s finding of global waiver as to all 9,300 cases now pending and any cases filed in the future is plainly unsustainable,” J&J said in the petition.

Judge Kinkeade had initially set 10 cases involving New York plaintiffs for trial in September, eight of which were filed directly into the MDL. His order on jurisdiction pertained only to the direct-file cases, because one case has been dismissed and the other, which was filed in New Jersey before being transferred into the MDL, raises unique issues that were not adequately briefed by the parties, he said in his order.

J&J told the Fifth Circuit that though few MDL courts have considered the personal jurisdiction implications of a direct filing order like the one in the Pinnacle hip implant case, allowing different jurisdictional findings just because a case was direct-filed in the MDL would produce an “anomaly” and “run contrary to Congress’s intent that MDL proceedings would encompass only pretrial matters.”

The hip implant patients want to move forward with the September trial date, Mark Lanier of The Lanier Law Firm PC said Wednesday.

“This is J&J’s third effort to mandamus Judge Kinkeade,” Lanier said. “It should be as futile as the prior efforts. J&J needs to address their culpability and quit trying to delay and run from the court.”

Johnson & Johnson declined comment Wednesday.

The Johnson & Johnson parties are represented by John H. Beisner, Stephen J. Harburg, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLPand Michael V. Powell of Locke Lord LLP.

The hip implant patients are represented by W. Mark Lanier, Michael R. Akselrud and Paul R. Cordella of The Lanier Law Firm PC, Larry Boyd, Wayne Fisher and Justin Presnal of Fisher Boyd Brown & Huguenard LLP, Richard J. Arsenault of Neblett Beard & Arsenault, Jayne Conroy and Laura L. Fitzpatrick of Simmons Hanly Conroy, Thomas J. Preuss of Wagstaff & Cartmell LLP, Rosemarie Riddel Bogdan of Martin Harding & Mazzotti LLP, Thomas R. Anapol of Anapol Weiss and Seth Katz of Burg Simpson Eldredge Hersh & Jardine PC.

The case is In re DePuy Orthopaedics Inc. et al., case number 17-10812, in the U.S. Court of Appeals for the Fifth Circuit.

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