5th Circuit Slaps Mark Lanier, Reverses $151.6 Million DePuy Judgment

5th Circuit Slaps Mark Lanier, Reverses $151.6 Million DePuy Judgment

The U.S. Court of Appeals for the Fifth Circuit had harsh words for noted plaintiffs’ attorney Mark Lanier in reversing a $151.6 million judgment against DePuy Orthopaedics, Inc. and its parent, Johnson & Johnson, in a hip replacement bellwether trial. The appeals court first held that the trial court had erred in admitting evidence of a Deferred Prosecution Agreement in which Johnson & Johnson admitted that a non-party affiliate had paid bribes to the Iraqi government – which Lanier told the jury could be used to infer Johnson & Johnson’s wrongdoing with respect to artificial hips – and hearsay allegations of race discrimination contained in a former DePuy employee’s resignation letter – which Lanier told the jury was further evidence of Johnson & Johnson’s knowledge of the artificial hip’s design flaws. The court then turned to two orthopedic surgeons called as expert witnesses at trail by Lanier, and whom Lanier had characterized as non-retained expert witnesses in pre-trial disclosures. Lanier told the jury that it should contrast these experts, whom Lanier characterized as unpaid, voluntary witnesses, with the defendants’ experts’ “bought testimony.” What Lanier failed to mention was that he had paid $10,000 to a charity designated by one of the experts five weeks before trial, and paid the experts $35,000 and $30,000, respectively, after trial. Despite noting the “heavy burden” on the defendants of showing by clear and convincing evidence that Lanier’s misrepresentations prevented defendants from fully and fairly presenting their case, the court found that this was “the rare case in which counsel’s deceptions were sufficiently obvious, egregious, and impactful to penetrate the layers of deference that would ordinarily shield against reversal.” Of Lanier’s deceptions, the court said: “The pre-trial donation check, Morrey Jr.’s expectation of compensation, and the post-trial payments to both doctors are individually troubling, collectively devastating.” [4/30/18]

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