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April 27th, 2018

5th Circuit Court of Appeals Overturns $502 Million J&J Verdict after Finding ‘Unequivocally Deceptive’ Conduct by Plaintiffs’ Lawyer

On Wednesday, April 25, 2018, the 5th Circuit Court of Appeals threw out a half-billion dollar verdict against Johnson & Johnson and DePuy Orthopedics and ordered a new trial in a bellwether products liability case that involved DePuy’s Pinnacle hip implant devices.

Writing for the three-judge panel, U.S. Circuit Judge Jerry Smith said that U.S. District Judge Ed Kinkeade in Dallas, TX, erred  by allowing plaintiffs’ lawyers to present “inflammatory character evidence” about defendants.  Judge Kinkeade allowed evidence regarding past wrongdoing by the defendants, evidence that was both “unduly prejudicial and irrelevant to the jury.”

The “most problematic evidence” were allegations about bribes that Johnson & Johnson paid to “henchmen” of Saddam Hussein in Iraq, stemming from the company’s agreement in 2011 to pay a settlement to resolve a U.S. foreign bribery probe.

Judge Kinkeade’s proclivity towards rubber-stamping plaintiffs’ lawyers’ irrelevant and prejudicial evidentiary requests has been well-documented in Judicial Hellholes, but allowing discussion about payments to Saddam Hussein in a case about hip implants seems outlandish, even for Judge Kinkeade.

Judge Kinkeade was not the only party to draw the ire of the 5th Circuit, Judge Jerry Smith also chastised infamous plaintiffs’ lawyer Mark Lanier in the court’s opinion.  The court found that Lanier should have disclosed the “gifts” he gave to two doctors who testified as plaintiffs’ expert witnesses in the trial.  Lanier has been leading the charge in the hip implant litigation, which includes almost 9,300 lawsuits consolidated before Judge Kinkeade.

Lanier listed two orthopedic surgeons- Dr. Bernard Morrey and Dr. Matthew Morrey, as “non-retained experts,” meaning they were not being paid to participate; however, it came to light that Lanier had made a $10,000 donation prior to trial to a charity of Dr. Bernard Morrey’s choosing.  Dr. Matthew Morrey also received payments prior to trial, and both doctors received thank you notes that included a total of $65,000 in checks.

The court stated, “This is the rare case in which counsel’s deceptions were sufficiently obvious, egregious, and impactful to penetrate the layers of deference that would ordinarily shield against reversal.”

“Lawyers cannot engage with a favorable expert, pay him ‘for his time,’ then invite him to testify as a purportedly ‘non-retained’ neutral party,” U.S. Circuit Judge Jerry Smith wrote for the three-member appellate panel. “That is deception, plain and simple. And to follow that up with [a] post-trial ‘thank you’ check merely compounds the professional indiscretion.”

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