DALLAS – Earlier this year, DePuy Orthopaedics and Johnson & Johnson appealed a trial court decision that would have them pay out $150 million in damages to five plaintiffs.
While the two companies originally submitted their brief under seal in April, the U.S. Court of Appeals, Fifth Circuit released the filing on May 1.
In their brief, the defendants contend they are entitled to a new trial because the plaintiffs apparently “misrepresented that their expert witness were not compensated,” which “prevented” them from “fully and fairly presenting their case.”
After a lengthy courtroom battle described in appeal documents as “intensely adversarial," a jury found in favor of five plaintiffs who had received DePuy’s Pinnacle hip implant, which uses a metal-on-metal design.
Plaintiffs’ counsel, which includes Houston attorney Mark Lanier, argued the defendants’ re-introduction of metal-on-metal hips traded progress for a known failed technology, causing countless serious, unnecessary health problems.
Jurors originally awarded $502 million in damages, but the amount was brought down to $150 million in accordance with Texas’ statutory cap on exemplary damages.
On appeal, DePuy and Johnson & Johnson maintain that the bellwether trial, which could set the tone for the thousands of other pending cases in the multi-district litigation, was an abject failure.
According to the defendants’ unsealed brief, Lanier had agreed before the trial to donate $10,000 to a charity of their first expert’s choosing, and then sent the expert a check for $35,000 after the trial, despite “repeatedly” telling the jury that their key expert witnesses were “volunteering their time ‘because of concern’ for the plaintiffs.”
“The second expert admitted that he expected to be paid all along—in no small part because Lanier told him ‘don’t worry about’ sending an invoice—and then, sure enough, received a check for $30,000 as soon as the trial was over,” the defendants’ brief states.
“Federal Rule of Civil Procedure 60(b)(3) was designed for precisely such circumstances, providing relief to parties who were unfairly disadvantaged by the opposing party’s misrepresentations or other misconduct.”
DePuy and Johnson & Johnson argue that by misrepresenting the facts about whether the experts had been or would be compensated, Lanier unfairly imbued them with a false aura of objectivity and credibility.
“Moreover, plaintiffs used their misrepresentations to justify their failure to produce expert reports, arguing that both experts were exempt from the report requirement because they were uncompensated,” the brief states.
“Plaintiffs’ misrepresentations thus deprived defendants of a meaningful opportunity to prepare for cross-examination or arrange for their own experts to rebut plaintiffs’ experts’ opinions.”
However, Lanier told the Record everything he said was 100 percent truthful.
"J&J paints a one-sided version, fails to tell the whole story, and leaves a false impression," Lanier said. "This brief is what the underlying case was full of -- J&J intimidating and disparaging anyone who dares to stand in their way and seek to hold them accountable.”
The appeal arises from the second trial in an MDL proceeding involving the product liability claims of more than 9,000 plaintiffs.
The plaintiffs collectively claim they were injured by debris generated by the implant’s metal-on-metal design.
In the meantime, on May 3, Lanier was named one of seven finalists for the Business Trial Lawyer of the Year award by Chambers USA.
Chambers has not yet responded to a request seeking to know that if the claims made by the defendants are indeed true, would Lanier’s chances of winning be affected.
Mark said he is honored to be named one of seven finalists by Chambers as Business Trial Lawyer of the Year and looks forward to the awards ceremony later this month.
The defendants are represented in part by Michael Powell, attorney for the Dallas Law Firm Locke Lord, and Paul Clement of the D.C. law firm Kirkland & Ellis.
Cause No. 17-10030