On April 25, 2018, the United States Fifth Circuit Court of Appeals reversed a half-billion-dollar judgment against DePuy Orthopaedics in a metal-on-metal artificial-hip case due to the “fraud, misrepresentation or misconduct” of plaintiffs’ counsel. See Christopher v. Depuy Orthopaedics, Inc., No. 16-11051 (5th Cir. Apr. 25, 2018).
Plaintiffs’ counsel called two orthopaedic surgeons to the stand during the products-liability trial. Both extolled the virtues of metal-on-polyethylene replacement joints and criticized metal-on-metal implants. During the proceeding, plaintiffs’ counsel emphasized the independence of these two witnesses, stating that they were “nonretained,” and that the plaintiffs did “not fund” them. He also contrasted their testimony with the “bought testimony” of the defendants’ paid experts. As it turned out, however, plaintiffs’ counsel had given a $10,000 donation to a charity selected by one of the surgeons, and a $30,000 payment to the other.
The Fifth Circuit considered whether these undisclosed—and misrepresented—payments “prevented the losing party from fully and fairly presenting his case or defense.” Finding the misrepresentations “individually troubling, collectively devastating,” the court concluded that they “foreclosed potentially promising cross-examination tactics.” Id. at 54. Said the court:
The district court abused its discretion in concluding otherwise. Calculated or not, falsehoods marred plaintiffs’ victory. The verdict cannot stand.