A federal judge in Texas this week took the unusual step of asking federal prosecutors and the FBI to probe possible witness tampering by lawyers for Johnson & Johnson (NYSE:JNJ) in a bellwether trial over metal-on-metal hip implants made by J&J subsidiary DePuy Orthopaedics.
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, according to Law.com.
“It is extremely concerning to me when there are requirements under the federal law, as well as state law, that witnesses not be tampered with, that—that it’s a serious felony, that it involves prison time, that it cuts to the core of who we are as a people and what our courts are about,” Lanier said, the website reported.
“This is a serious matter that requires serious—you know—serious treatment and has serious ramifications,” Kinkeade replied, according to the site, noting that although he’s not jumping to conclusions, “it is certainly disturbing and disconcerting to me.”
Lanier had planned to call Shein to testify Monday, but would not in light of the affidavit, citing Shein’s friendship with Swajger, the apparent involvement of DePuy lawyers and Swajger’s avowal to Shein that he still believes in metal-on-metal implants.
“There’s no way as a lawyer I can put this witness on the stand in light of that type of pressure and in light of … that type of pressure and in light of — of that type of — intimidation, and in light of that type of settled psychological manipulation of his testimony, as I perceive it,” Lanier said, according to Law.com.
Defense attorney Steven Quattlebaum told Kinkeade he wants to know the “whole facts,” the site reported, citing a transcript of the hearing.
“The insinuation that there’s some impropriety in talking to our employee, and the insinuation is that we somehow directed the employee to go do something improper, with no facts to back that up whatsoever, is what makes me angry,” Quattlebaum said, adding that he had a call with Swajger hours after the rep’s conversation with Shein and that other defense attorneys had spoken with Swajger to assess the status of DePuy’s relationship with Shein.
“We take all our legal obligations and responsibilities very seriously, and do not believe there is any basis for these accusations. We have acted appropriately towards all witnesses involved in this litigation,” added defense attorney John Beisner, Law.com reported.
Kinkeade also denied the defense’s motion for a gag order on the tampering issue.