Lawyers for Johnson & Johnson(NYSE:JNJ) in a bellwether trial over metal-on-metal hip implants made by J&J subsidiary DePuy Orthopaedics yesterday denied witness tampering allegations leveled by the lead plaintiff’s attorney.
Last week a federal judge in Texas took the unusual step of asking federal prosecutors and the FBI to probe the possible witness tampering. Mark Lanier, lead attorney for the plaintiffs in one of six cases being tried in the U.S. District Court for Northern Texas bellwether before Judge Ed Kinkeade, raised the tampering issue during an Oct. 16 hearing based on a conversation between a DePuy sales rep and a surgeon who’s a witness in the case.
Dr. David Stein filed an affidavit Oct. 15 documenting a conversation with Glen Swajger held ostensibly to discuss “a procedure requiring [Swajger’s] involvement.”
“Mr. Swajger looked terrible and appeared stressed, so I asked him what was going on,” Stein said in the affidavit. “He said the day before (October 12, 2017), he had been contacted by the DePuy lawyers and that discussion made him anxious. He said the lawyers were ‘on him like crazy.’ They were putting ‘big-time pressure’ on him.”
Swajger then warned Stein of possible “ramifications” to his medical practice “in connection with my upcoming Dallas testimony,” according to the affidavit.
“He indicated the lawyers were ‘peppering him.’ He said the ‘business in Dallas was freaking [him] out.’ He said he had a ‘terrible’ day on Thursday as a result of this and my going to Dallas was driving him crazy. He said ‘I care about you,’” Stein said in the affidavit.
After Lanier raised concerns about possible witness tampering during the hearing Monday, Kinkeade said he would ask the U.S Attorney’s office in his district and FBI agents to interview Swajger and any defense lawyers he spoke with.
In a motion filed yesterday, DePuy attorneys Jessica Brennan and Michael Zogby said that Brennan’s contact with Swajger was limited to brief phone conversations confirming his availability for a conference call to discuss the case.
“At no time during Ms. Brennan’s aforementioned calls to Mr. Swajger, or on Mr. Swajger’s call to her, did she request that Mr. Swajger do anything other than be available for a conference call with the trial team. She certainly did not tell Mr. Swajger to do anything or to communicate with Dr. Shein. She merely explained that the trial team wanted to visit with him, explained why, and worked through the timing of such call given Mr. Swajger’s busy schedule,” according to the motion.