Mark Lanier.

 

It’s true in sports and in litigation: Sometimes the best defense is a good offense.

Accused of not disclosing payments to two expert witnesses in a 2016 trial against Johnson & Johnson, Houston plaintiffs attorney W. Mark Lanier defended his actions with a counterattack, claiming that a defense expert failed to disclose $1 million of payments.

Lanier made the charge in a Wednesday court filing before the U.S. Court of Appeals for the Fifth Circuit, which is hearing Johnson & Johnson’s appeal of a $502 million verdict awarded for alleged defects in a hip implant made by subsidiary DePuy Orthopaedics Inc.

Johnson & Johnson is seeking a new trial based on claims that Lanier, of The Lanier Law Firm, failed to disclose to a federal judge and jury in Dallas that two expert witnesses, who he said were not paid, had received checks after the trial totaling $65,000. Additionally, J&J’s lawyers claim Lanier donated $10,000 to a grade school attended by one of the witnesses.

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The fight has gotten personal, with Ken Starr, former U.S. solicitor general and a member of Lanier’s appellate team, stepping up to defend Lanier.

In Wednesday’s response, Lanier and Starr said that the payments were made after trial. They also said the payments pale in comparison to the amounts that Johnson & Johnson paid its experts. According to the plaintiffs filing, one of the defense experts, Dr. Roger Emerson, an orthopaedic surgeon who received $500,000 from DePuy for his service as a witness, was “less than truthful” about $1 million in royalties he received separately for “design and consulting work” from another hip implant manufacturer, Biomet Inc.

“Even if the Morreys had already been paid or promised $35,000 and $30,000 respectively (which they had not), the possibility for bias was still exponentially greater with defendants’ experts,” they wrote. (The two plaintiffs’ experts, Drs. Bernard Morrey and Matthew Morrey, are father and son.)

The company is represented by Washington, D.C., attorneys Paul Clement, a former U.S. solicitor general and appellate partner at Kirkland & Ellis, and John Beisner, who heads the mass torts, insurance and consumer litigation group at Skadden, Arps, Slate, Meagher & Flom.

In a statement, Beisner wrote: “Our appeal is based on evidence that we believe shows Mr. Lanier misrepresented to the judge and the jury the payment arrangements for two of his expert witnesses. We stand on our briefing, which explains why we believe this misrepresentation was egregious and highly prejudicial, and we look forward to a full and careful review of this issue by the appellate court.”

The verdict at issue came in the second bellwether trial over the Pinnacle, which has generated more than 9,000 lawsuits alleging the devices caused pain and subsequent removal surgeries. DePuy won the first verdict in 2014 and has a separate appeal pending to reverse the second verdict, citing “inflammatory rhetoric” at trial and other “legal flaws.” Lanier and Starr have challenged the constitutionality of the Texas punitive damages cap statute, which cut the award to $150 million. A third trial ended with a $1.04 billion verdict on Dec. 1 that was later cut to $540 million.

It was in preparation for the third trial that Johnson & Johnson claims that plaintiffs attorneys turned over the checks for the first time during the depositions of the Morreys. They claim the revelations of the checks, which were to compensate both experts for their work in the second case, require a new trial and could undermine “the reliability of the entire bellwether process.”

On Dec. 9, U.S. District Judge Edward Kinkeade of the Northern District of Texas rejected Johnson & Johnson’s allegations, finding no evidence of fraud because, unlike in the third trial, plaintiffs attorneys had no agreements to compensate both experts at the time of the second trial. He also cited “far larger payments” that defendants gave their own experts.

“Defendants have not shown how evidence of plaintiffs’ experts receiving a fraction of the compensation of defendants’ experts would have produced a different result at trial,” he wrote.

Amanda Bronstad covers mass torts and class actions for ALM. Contact her at abronstad@alm.com. On Twitter: @abronstadlaw