A lawyer for DePuy Orthopaedics, the defendant in a bellwether hip implant trial in Dallas, said in a motion filed Tuesday that said she did not ask a DePuy sales representative to “do anything or communicate” with a doctor who filed an affidavit suggesting witness tampering.
In the motion, filed by Drinker, Biddle & Reath associate Jennifer Brennan and partner Michael Zogby, the DePuy attorneys allege that Brennan made several calls to sales rep Glenn Swajger on Oct. 12 and 13 but she never asked him to do anything other than make himself available for a conference call with the trial team Oct. 13.
“She certainly did not tell Mr. Swajger to do anything or to communicate with Dr. [David] Shein. She merely explained that the trial team wanted to visit with him, explained why, and worked through the timing of such call given Mr. Swajger’s busy schedule,” Brennan and Zogby allege in their motion “requesting logistics for the inquiry” related to Dr. Shine.
On Oct. 16, U.S. District Judge Ed Kinkeade said he would have the FBI and the U.S. Attorney’s office question Shein, Swajger and others, including lawyers, in connection with the affidavit Shein filed Oct. 15 on the eve of the day he was to be called as a witness by the plaintiffs’ attorneys.
In that affidavit, Shein said Swajger told him during a surgery-related conversation at his hospital on the morning of Oct. 13 that he worried “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony. Shein said in the affidavit that Swajger told him the DePuy lawyers had contacted him on Oct. 12 and were pressuring him, and making him anxious.
Plaintiffs attorney Mark Lanier raised concerns about witness tampering after Shein filed the affidavit. While noting he wasn’t jumping to conclusions, Kinkeade said the affidavit was serious and “certainly disturbing and disconcerting to me.”
In Tuesday’s motion, Brennan and Zogby asked Kinkeade to adopt their proposal for the logistics of the questioning. They suggested Assistant U.S. Attorney Marcus Bush or a designee interview Brennan, and then Kinkeade question her in open court, limiting examination to communications Brennan had with Swajger on Oct. 12 and 13 prior to the conference call Swajger had with the trial team at 3:01 p.m. on Oct. 13.
Brennan and Zogby noted in the motion that DePuy is only waiving attorney-client privilege in connection with communications between Brennan and Swajger on Oct. 12 and Oct. 13 up until the 3:01 p.m. call with the trial team. They also said Zogby should not be questioned because he was not on the phone calls in question.
In the motion, the lawyers allege that Brennan left a voicemail for Swajger at 4:25 p.m. on Oct. 12, and then he returned the call at 4:56 p.m. “Ms. Brennan communicated the trial team request to have a call and discussed the timing of such call. Ultimately, Mr. Swajger suggested that she call him back the next day at 11 a.m. because he would then have a better idea of what his schedule would be like for the day,” the lawyers wrote.
The lawyers wrote that Brennan called Swajger at 11 a.m. Oct. 13 to propose a 3 p.m. call, called him back at 2:55 p.m. to confirm that time still worked, and then called him back at 3:01 p.m. to patch him into the conference call. Zogby was on that trial team call.
The lawyers wrote that their attorney, Polsinelli shareholder William Mateja of Dallas, contacted Bush to offer Brennan for an interview similar to his prior interview of Shein.
Lanier, founder of Lanier Law Firm of Houston, said Shein was interviewed by the FBI and the U.S. Attorney’s office on Oct. 16 before he left to fly back to New York. Lanier could not be immediately reached for comment.
Richard Roper, a partner at Thompson & Knight in Dallas who represents DePuy, its parent, Johnson & Johnson and Johnson & Johnson Services in connection with the witness tampering investigation, declined to comment.
In an amended certification filed Oct. 20, Roper certified that his clients have identified individuals, including inside and outside counsel for the companies, who may have communicated with Swajger from Sept. 12 through Oct. 13 about Shein, and have preserved all communications.
Also on Oct. 20, Mateja filed certification that his clients, including Brennan, a Drinker Biddle associate in Florham Park, New Jersey, Zogby, a partner in New York and Florham Park, and the firm, have put a preservation hold on all communications relating to Swajger and Shein from Sept. 12 through Oct. 13.
The bellwether trial, which is hard-fought, started Sept. 19.