Philip Hilder

Philip Hilder of Hilder & Associates in Houston said witness tampering may be exposed more in criminal cases because of the clearly defined parameters that need to be followed in criminal cases. For instance, when individuals are charged with an offense, they are usually admonished by the court to not have contact with witnesses, and are warned that to do so would be considered witness tampering or obstruction of justice.

But in a civil suit, people may innocently contact witnesses under the belief that it is OK to talk to them about their testimony, said Hilder, a former federal prosecutor for the U.S. attorney’s office for the Southern District of Texas and the U.S. Department of Justice.

“That’s why you hear a lot more about it in criminal cases. The definitions are more pronounced as to who you can contact and talk with and who you can’t. In civil cases, it’s blurred,” Hilder said.

Brian Wice

Brian Wice, a criminal defense lawyer who is a special prosecutor in the criminal case against Texas Attorney General Ken Paxton, said witness tampering may be more common in criminal cases because the stakes may be infinitely higher, and “sometimes people are more likely to fall into that ethical abyss where they would attempt to shade their testimony in a matter where it’s not the truth, the whole truth.”

Michael Uhl, a partner at Fitzpatrick Hagood Smith & Uhl in  Dallas who used to work at the U.S. attorney’s office in the Northern District of Texas, said he could recall several investigations of witness tampering in both civil and criminal cases. In the criminal cases, Uhl said, it was usually when witnesses were paid off or secured away so they couldn’t be served with a subpoena.

He said the FBI is really good at tracking down those witnesses, and, in most cases, the witnesses “give up” the lawyer who tampered with them.

“Sometimes it’s brought to the federal judge’s attention who, as you can imagine, deals with the lawyers pretty harshly,” Uhl said. In a situation in which a defendant tampers with a witness or tries to change their testimony, that obstruction of justice is dealt with at the defendant’s sentencing, he said.

In a situation in which a defendant tampers with a witness or tries to change their testimony, that obstruction of justice is dealt with at the defendant’s sentencing, he said. In court, he added, a good cross-examination can often reveal witness tampering.

Matthew Orwig, a partner at Winston & Strawn in Dallas who is a former U.S. attorney for the Eastern District of Texas, said he also has seen witness-tampering allegations more often in criminal cases. But he also has seen it occur in white-collar crime cases.

However, he does not recall ever hearing about witness tampering taking place in a civil case between two private parties, such as the hip implant trial in Kinkeade’s court.

In the hip implant trial, which started on Sept. 19, Kinkeade told lawyers he wasn’t jumping to any conclusions but wants the FBI and the U.S. attorney’s office to question Shein, as well as the sales rep and the lawyers who contacted the sales rep. That unusual move comes in a particularly high-stakes and contentious trial.

Orwig said it’s important to not jump to conclusions about the affidavit, and the judge acted judiciously. “He wants others to look into this. He obviously felt there was enough to deserve further inquiry.”

Orwig said he worked on some criminal trials, both as a prosecutor and as a defense attorney, when witness-tampering allegations arose. “Sometimes there’s something to it, and sometimes there’s not, and sometimes it’s something serious that could affect the trial, and oftentimes it’s not,” he said.

Plaintiffs lawyer W. Mark Lanier of Lanier Law Firm of Houston said the information in Shein’s affidavit is “brazen, stunning, outrageous” and merits an investigation.

But John Beisner, a member of the DePuy defense team and a partner at Skadden Arps Slate Meagher & Flom in Washington, D.C., said nothing inappropriate took place.

“We take all our legal obligations and responsibilities very seriously and do not believe there is any basis for these accusations,” he said. “We have acted appropriately toward all witnesses involved in this litigation.”