The U.S. Justice Dept. reportedly closed its probe into alleged witness tampering in a bellwether trial over the Pinnacle metal-on-metal hip implants made by Johnson & Johnson (NYSE:JNJ) subsidiary DePuy Orthopaedics.
In October 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 a hearing, 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.
DePuy attorneys Jessica Brennan and Michael Zogby denied the allegations in court filings, saying 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.
Johnson & Johnson reportedly said the Northern Texas attorney general’s office has closed its investigation,
“DePuy has always known these allegations to be meritless, and is pleased that the matter has been resolved,” the company said in a statement provided to Law360.
“We’re certainly pleased with the U.S. attorney’s office’s decision and Judge Kinkeade’s prior ruling,” added Bill Mateja, the lawyer representing Brennan and Zogby. “We’ve known all along that there was never any evidence of witness tampering on our part, and are not surprised with either the U.S. attorney’s office’s decision or the court’s prior ruling. The issue has now been put to rest here in Texas, and we’re hopeful plaintiffs’ counsel in other products liability cases who have attempted to exploit these patently false accusations against Drinker Biddle, Brennan and Zogby will cease as the assertions are baseless.”
Earlier this month the jury in the case delivered a $247 million verdict for the plaintiffs, awarding more than $78.7 million in damages, $90 million in punitive damages against J&J and $78 million in punitive damages against DePuy.