Fifth Circuit nixes $151M verdict, finds Mark Lanier misrepresented that experts weren’t compensated

By David Yates | Apr 26, 2018

DALLAS – DePuy Orthopaedics and Johnson & Johnson will get a new trial after the previous one in 2016 ended with the companies having to pay $151 million in damages to five plaintiffs with alleged hip replacement injuries.

On April 25, the U.S. Court of Appeals for the Fifth Circuit found that plaintiffs’ attorney Mark Lanier’s “deceptions furnish independent grounds for a new trial” that centered Pinnacle artificial hips.

Justices further found that the trial court allowed the Houston lawyer to introduce “inflammatory character evidence," such as the defendants bribing Saddam Hussein’s Iraq regime and hearsay allegations of race discrimination.

On appeal, the companies contend a new trial was necessary because the plaintiffs apparently “misrepresented that their expert witness were not compensated,” which “prevented” them from “fully and fairly presenting their case.”

Lanier told the Record he thought the opinion was “interesting” and that the legal reasoning upholding the various actions against Depuy and J&J are strong and important and will help all future cases. 

“We think that the court misunderstood the issues of monetary representations about the doctors, but we will honor the court’s ruling rather than appeal,” Lanier said.

“We find it unfortunate the behavior of J&J was so bad, that reciting that behavior to a jury evidently prejudices the verdict; however, the court has not allowed that into evidence in the subsequent trials, and those resulted in larger awards. When all is said and done, we intend to request a retrial as soon as the court can allow.”

Case history

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.

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 $151 million in accordance with Texas’ statutory cap on exemplary damages.

DePuy and Johnson & Johnson maintained that the bellwether trial was an abject failure.

Court records show 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.”

DePuy and Johnson & Johnson argued 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.

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.

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. 16-11051

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