Retrial Begins After Case Remanded for Concealing Expert Witness Fees

Claiming his expert witnesses worked pro bono, when they actually would receive $75,000 in compensation, a plaintiff's attorney was "deceptive", the 5th Circuit Court of Appeals ruled in April 2018. That deception was cause for a new trial in the second bellweather case against Johnson & Johnson for defective hip implants, which has now begun in Texas federal court.

In this seven-year-old Pinnacle Hip Implant multidistrict litigation (“MDL”), Johnson & Johnson (J&J) and its subsidiary DePuy Orthopaedics appealed to the Fifth Circuit on multiple grounds, most prominently on allegations that the plaintiffs' attorney, Mark Lanier, concealed payment arrangements with two key expert witnesses.

The plaintiffs contended that the Pinnacle hip implants were defective. To support the case, Lanier made expert disclosures listing Dr. Bernard Morrey (“Morrey Sr.”) and Dr. Matthew Morrey (“Morrey Jr.”) as orthopedic expert witnesses “who ha[v]e not been retained or specially employed to provide expert testimony in this litigation.”

The Fifth Circuit noted that Morrey Sr. was a compelling witness who walked the jury through the history of Metal-on-Plastic (MoP) and Metal-on-Metal (MoM) hip implants, explaining that, unlike the MoM Pinnacle hip implants, he used safer, alternative MoP implants in all of his patients, including Billy Graham and former President George H.W. Bush.

During both the direct and the redirect, Lanier repeatedly compared Morrey Sr. and Morrey Jr.'s pro bono testimony with the "bought testimony" of the defendants' paid experts.

Recounting their initial meeting before the trial, Lanier described to the jury how he and Morrey Sr. shared the “best apple pie in the world.” He failed to mention that at the same meeting he offered to pay Morrey Sr., and when that offer was declined, Lanier offered to donate to a charity of Morrey Sr.'s choice. Morrey Sr. selected his alma mater, St. Rita's Catholic School in Fort Worth, to which Lanier donated $10,000.

In preparation for the third bellwether trial, Lanier redesignated Morrey Sr. and Morrey Jr. as traditional experts. Plaintiffs produced two letters from Lanier, both dated at the end of the second trial, thanking them for their “pro bono” testimony, and enclosing checks of $35,000 for Morrey Sr. and $30,000 for Morrey Jr.

With the evidence of the letters, defense counsel then questioned Morrey Sr. during a deposition for the third trial about whether he had received “any other compensation” for his testimony in the second trial. Morrey Sr. then revealed, for the first time, the donation.

Defense counsel then deposed Morrey Jr., querying him about any compensation. Morrey Jr. told defendants' counsel that he had always expected that experts were paid and had initially inquired about payment, and was told by plaintiff's staff not to worry. He had a standard "fee sheet" which he explained that they used to "fill out our hours involved and we submit it afterwards."

After these depositions, the defendants moved for relief from judgment in due to "fraud …, misrepresentation or misconduct."

The district court found no “agreement for compensation” at the time of trial. As well, the district court reasoned that, since plaintiffs' experts were receiving far less compensation then the defendants' experts, there was no evidence that admission of the payments during trial would have produced a different result.

The Fifth Circuit of Appeals disagreed, finding that it was not whether misrepresentation altered the result but whether it "“prevented the losing party from fully and fairly presenting his case or defense.”

The Fifth Circuit found that the facts spoke "pellucidly":

Lawyers cannot engage with a favorable expert, pay him “for his time,” then invite him to testify as a purportedly “non-retained” neutral party. That is deception, plain and simple. And to follow that up with post-trial “thank you” check merely compounds the professional indiscretion.

In remanding for a new trial, the Fifth Circuit did not comment on the professional discretion of the medical expert witnesses who were part of this "deception", but medical boards might not look favorably on such conduct. Certainly, such conduct might not bode well for them being retained in any future litigation.

See: Re DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, 16-11051, 5th Cir.