Judge Ed Kinkeade U.S. District Judge Ed Kinkeade of the Northern District of Texas

In a highly-watched hip implant trial in Dallas, U.S. District Judge Ed Kinkeade of the Northern District of Texas brought in the FBI and the U.S. Attorney’s Office to investigate a witness tampering allegation. On Monday, the defendants filed a response suggesting that the response to the alleged witness tampering has been overblown.

Defendants DePuy Orthopaedics and its parent Johnson & Johnson and related companies allege in the response that Dr. David Shein, whose affidavit prompted Kinkeade to order the investigation, told the judge at a hearing on Oct. 16 that he didn’t think his conversation with a DePuy sales rep days before his testimony was a big deal and it would not have affected his testimony.

In the affidavit Shein filed on Oct. 15 in Alicea v. DePuy Orthopaedics, a contentious trial, the doctor alleged DePuy sales rep Glenn Swajger told him during a surgery-related conversation at his hospital on Oct. 13 that Swajger was worried “there could be ramifications” for the doctor’s medical practice in connection with his upcoming testimony at the trial in Dallas. Kinkeade asked the FBI and U.S. Attorney’s Office to investigate.

The defendants alleged in Monday’s response that Shein made it clear to Kinkeade in court on Oct. 16 that he didn’t think his brief conversation with Swajger “was that big a deal,’ ‘thought it was nothing,’ and ‘didn’t think that this was something.’” The defendants also allege Shein “was clear that the exchange had no effect on his comfort with testifying.”

The defendants claim Shein told Kinkeade on Oct. 16 that he just mentioned the conversation with Swajger to plaintiffs lawyer Mark Lanier in passing and “then this all blew up.”

“Mr. Lanier, however, extrapolated that some conspiracy to intimidate witnesses was afoot. … This extrapolation was unjustified and unreasonable, and does not suggest that any witness tampering occurred,” the defendants said in the response.

Lanier chose not to have Shein testify on Oct. 16 after he raised questions about possible witness tampering based on Shein’s affidavit. In an email on Monday, Lanier took umbrage at the defendants’ allegations in the response.

“The evidence of jury tampering was by the witness, not me,” Lanier wrote in the email, adding, “Judge Kinkeade said there is a prima facia case of attempted influence. He referred it to the FBI, not me.”

Lanier wrote that the defendants are only telling half of the story in their response.

“They continue to parade half-accurate statements ignoring the full truth and thereby distorting the reader’s understanding of what happened. This is akin to citing Dickens for claiming everything was fantastic because he wrote in a ‘Tale of Two Cities,’ ‘It was the best of times.’ Of course, leaving out the next clause, ‘It was the worst of times,’” Lanier wrote.

The defendants argue in the response that they agree with a logistics plan proposed last week  by attorneys from Drinker Biddle & Reath that anyone who is questioned in connection with the alleged witness tampering should be interviewed by the U.S. Attorney’s Office, and then by Kinkeade in open court, if necessary. The defendants said depositions are not necessary.

“There is simply no reason to divert the parties’ or the court’s time—in the middle of a long and complicated trial—to pursue further inquiry into the details of alleged witness tampering where the undisputed evidence from the witness himself is that the events would have no effect on his testimony. After all, any wrongdoing that might have occurred (and none did) can be addressed through the criminal investigation requested by the court,” the defendants allege in the response.

Drinker Biddle is involved because it also represents the defendants in hip implant litigation, and one of its lawyers had been communicating with Swajger before he spoke with Shein on Oct. 13. However, the lawyer filed a motion on Oct. 24 saying she did not ask Swajger to communicate with Shein about the trial.