A trial regarding hip implants manufactured by a subsidiary of Johnson & Johnson, DePuy Orthopaedics, Inc. is now going to involve an investigation from the U.S. Attorney’s Office and the FBI following allegations of witness tampering in the hip implant bellwether trial.
Injuries Alleged Against DePuy Orthopaedics Inc.’s Metal-On-Metal Hip Implants
The trial involves injuries that occurred as a result of DePuy Orthopaedics Inc.’s metal-on-metal hip implants. All-metal hip implants were meant to be an upgrade from the prosthetic hips that included plastic liners that tended to wear over time. The new metal-on-metal hip replacements were hailed as a better option for younger hip replacement patients who intended to remain active following the replacement of their hip. However, the all-metal hip replacements ended up creating a whole host of problems to patients. Individuals who had received all-metal hip replacements presented with high, and potentially dangerous blood levels of chromium and cobalt, and suffered from rashes, constant pain, trouble sleeping and many other physical ailments resulting from the metal wearing off of the prosthetic and poisoning tissue as it migrated through the body.
The Specific Allegations of Witness Tampering
The plaintiff’s attorney brought concerns related to witness tampering to the court’s attention following an affidavit that was filed by a New York orthopedic surgeon, Dr. David Shein, in the case Alicea v. DePuy Orthopaedics. The affidavit states that a sales representative from DePuy informed Shein on October 13th that his upcoming testimony in the DePuy case could cause “ramifications” to his medical practice. In his affidavit, Shein relayed complaints from the sales representative, which included claims that the attorneys for DePuy were “peppering him” with questions regarding the “business in Dallas,” and expressed that the pressure was causing him distress, and that contact from the DePuy attorneys was making him anxious, and that they were putting a great deal of “pressure” on him.
The Crime of Witness Tampering
The plaintiff’s attorney, Mark Lanier informed the presiding judge, U.S. District Judge Ed Kinkeade of the Northern District of Texas, that he was extremely concerned about the information contained in the affidavit, as it indicated that the attorneys for DePuy might have engaged in witness tampering, which is a felony, and a federal crime.
The crime of tampering with a witness occurs when someone uses intimidation, physical force or other prohibited behaviors such as bribery or blackmail against a witness as a way to influence what that witness says in the course of a court proceeding. In order to be considered witness tampering, the accused person must have attempted to influence the testimony of an individual whom they believed was likely to serve as a witness, or who they believed had relevant information in a criminal or civil proceeding. It is not necessary that the person accused of witness tampering is actually successful in order for them to be found guilty. It is enough that they took actions meant to tamper with the witness or to hinder the court’s ability to get a truthful testimony from that witness.
Allegations of “Psychological Manipulation” as a Result of the Potential Interference
Lanier also stated that while he had intended to put Shein on the witness stand, that he would not now do so as a result of the information contained in the affidavit because it indicated that Shein was friends with the sales rep, that the sales rep had been contacted by the attorneys for DePuy, and included statements demonstrating that the sales rep informed Shein that he still believes in the use of metal-on-metal implants. Lanier stated that the affidavit showed that the witness would be under pressure and that his testimony had undergone “psychological manipulation” as a result of the potential interference.
DePuy’s Attorneys Respond to Allegations of Witness Tampering
Steven Quattlebaum, attorney for the defense, informed Kinkeade that he was angry at the insinuation that DePuy’s attorneys, by speaking to the sales rep, an employee of DePuy, had engaged in some form of wrongful conduct. Quattlebaum stated that Lanier’s insinuation that they had “directed their employee to do something improper” was made without any supporting facts. He also stated that he was on the phone with the sales rep during a call which was made in order to determine if the sales rep continued to have a good relationship with Shein and to determine whether or not Shein was still using products manufactured by DePuy. Quattlebaum stated that everything had been good between Shein and DePuy during the doctor’s deposition, and he wished to make sure that nothing had changed in the time since the deposition was taken. Quattlebaum also said that he was aware that an attorney had contacted the sales rep a few days prior to that phone conversation in order to arrange a time for the call in which Quattlebaum participated.
Another attorney for DePuy, John Beisner, stated that his team takes its “legal obligations and responsibilities very seriously,” and that he did not “believe there is any basis” for the accusations of witness tampering. He claims that his team has behaved appropriately with regards to all of the witnesses involved in the case.
Kinkeade, while he has yet to render a conclusion as to whether witness tampering occurred, has called the situation “disturbing and disconcerting.” Kinkeade stated that he would like the U.S. Attorney’s Office and the FBI to conduct interviews of the sales rep from DePuy and all attorneys who had contact with that sales rep.
Kinkeade also denied a motion filed by Quattlebaum, which requested that the Judge issue a gag order to prevent the “public dissemination” of information regarding the witness issue because the information could contaminate the trial and make it impossible for a fair trial to proceed.
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