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Reversing a $151 million judgment, a federal appeals court said Johnson & Johnson deserved a new trial over metal-on-metal hip replacements.
The U.S. Fifth Circuit Court of Appeals reversed on various grounds, but emphasized tainted evidence and "unequivocally deceptive" trial tactics. The appeals court said the plaintiffs' attorney misled jurors by saying his expert witnesses were unpaid and the defense experts were "bought testimony."
The problem in Christopher v. DePuy Orthopaedics, the appeals court said, was the plaintiffs' lawyer paid the experts after the trial. That, and the judge allowed "inflammatory character evidence" against the company.
The jury awarded $502 million against Johnson & Johnson and DePuy Orthopaedics, but the trial judge reduced it to $151 million under a damages cap in Texas. It was a bellwether trial for several thousand plaintiffs in multi-district litigation.
The plaintiffs alleged they suffered complications due to hip replacements that required repeated surgeries. The defendants appealed on various grounds, and the Fifth Circuit granted a new trial.
The appeals court said the "most problematic evidence" were bribes Johnson & Johnson allegedly paid to "henchmen" of Saddam Hussein in an unrelated matter. The company settled the matter in 2011, agreeing to pay $70 million to the U.S. government.
That evidence should not have come in, the appeals panel said. "Because the taint is unmistakable, the verdict cannot stand," Judge Jerry Smith wrote for the court.
"Plain and Simple"
The Fifth Circuit also excoriated plaintiffs' counsel for telling jurors his experts were "not retained," but then paid the witnesses $65,000 after the trial.
"That is deception, plain and simple," Smith said. "And to follow that up with [a] post-trial 'thank you' check merely compounds the professional indiscretion."
In news reports, attorney Mark Lanier defended his actions. He said he disclosed the post-trial payments to the defendants.
"This came to light because I told the parties about it," Lanier said. "I never hid anything."