An appeals court’s decision to throw out a half-billion dollar verdict and order a new trial in a bellwether products liability case against Johnson & Johnson and DePuy Orthopaedics Inc. was in part due to “unequivocally deceptive” conduct by prominent plaintiffs lawyer W. Mark Lanier.
The U.S. Court of Appeals for the Fifth Circuit chastised Lanier for deceiving a Texas jury that put Johnson & Johnson and its DePuy Orthopaedics unit on the hook for $502 million over allegedly defective hip implants. In a ruling issued Wednesday, it found that Lanier should have disclosed “gifts” he provided to two doctors who testified as expert witnesses in the trial.
“Lawyers cannot engage with a favorable expert, pay him ‘for his time,’ then invite him to testify as a purportedly ‘non-retained’ neutral party,” U.S. Circuit Judge Jerry Smith wrote for the three-member appellate panel. “That is deception, plain and simple. And to follow that up with [a] post-trial ‘thank you’ check merely compounds the professional indiscretion.”
The court threw out the half-billion dollar verdict and ordered a new trial in a bellwether case that is part of products liability litigation against J&J and DePuy over DePuy’s Pinnacle hip implant devices. Although the appeals court also found that the lower court improperly allowed evidence and arguments that related to a J&J settlement in a prior foreign bribery case and an allegation of racial bias by a former DePuy employee, a significant portion of the court’s opinion analyzed Lanier’s conduct with respect to the two expert witnesses.
Lanier, who heads The Lanier Law Firm in Houston, is a well-known trial lawyer who has been leading the way for plaintiffs in the hip implant litigation, which includes roughly 9,300 lawsuits consolidated in Dallas federal court. The Fifth Circuit on Wednesday held that Lanier’s conduct was “sufficiently obvious, egregious and impactful” to justify throwing out the trial verdict.
Specifically, the court wrote that Lanier listed the two orthopedic surgeons, a father-son duo—Dr. Bernard Morrey, referred to in the opinion as “Morrey Sr.” and Dr. Matthew Morrey, referred to as “Morrey Jr.”—as “non-retained” experts, meaning they were not being paid by the plaintiffs lawyers in connection with their testimony.
Despite that designation, as well as repeated references during the trial to the doctors’ “pro bono” testimony, the Fifth Circuit found that Lanier had made a $10,000 donation before the bellwether trial to a charity of Morrey Sr.’s choosing. The court also found that, prior to the trial, Morrey Jr. had expected to receive payments from the plaintiffs lawyers. After the trial, the court added, Lanier sent the two doctors thank you notes that also included a $35,000 check to Morrey Sr. and a $30,000 check to Morrey Jr.
“The facts speak pellucidly: The pretrial donation check, Morrey Jr.’s expectation of compensation, and the post-trial payments to both doctors are individually troubling, collectively devastating,” the Fifth Circuit wrote. “Lanier’s failure to disclose the donation, and his repeated insistence that Morrey Sr. had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”
The appeals court added that those payments should have been disclosed during trial and found against Lanier’s assertions that they were nothing more than thank you’s for spending a significant amount of time on the case.
“A lawyer would not make a $10,000 donation to an expert’s charity of choice—a “gift” for his time—without realizing the “gift” would likely induce subsequent testimony,” the court wrote. “Granted, the record includes no evidence that Lanier stated expressly that the donation came with strings attached. But sometimes, in matters of persuasion, what goes without saying is best left unsaid.”
In an email on Thursday, Lanier described the Fifth Circuit’s opinion as “interesting,” and appeared to find some silver linings, despite the appeals court’s criticisms of his conduct. He noted that there were upsides in the ruling for future cases in the hip implant litigation—among other findings, the court refused to throw out many of the plaintiffs’ claims as a matter of law. Lanier also said he believed the court misunderstood the issues surrounding the doctors who served as experts, but added that he accepted the court’s conclusion.
“We think that the legal reasoning upholding the various actions against DePuy and J&J are strong and important. These will help all future cases,” Lanier said. “We think that the court misunderstood the issues of monetary representations about the doctors, but we will honor the court’s ruling rather than appeal. … When all is said and done, we intend to request a retrial as soon as the court can allow.”
Paul Clement of Kirkland & Ellis, who argued the appeal for the companies, didn’t immediately respond to a request for comment.