By all accounts, each of the three bellwether trials in the DePuy Pinnacle artificial hip MDL has been contentious. In the fourth bellwether trial, which should wrap up this week, the litigants have been in a fierce battle again. The most recent skirmish has centered on allegations by plaintiffs suggesting that lawyers for DePuy Orthopaedics may have been trying to influence the testimony of a witness for the plaintiffs.
I want to share with you the affidavit submitted by Dr. David Shein, a surgeon who treated three of the six plaintiffs involved in the current trial. Dr. Shein was once expected to be called as a fact witness in the case by the plaintiffs.
Affidavit of David Shein, M.D.
- On Friday, October 13, 2017, at approximately 11:00am while was scrubbing in for surgery at the Montefiore Hospital, I met with my DePuy sales representative Glen Swajger in connection with a procedure that required his involvement.
- Mr. Swajger looked terrible and appeared stressed, so I asked him what was going on. He said the day before (October 12, 2017), he had been contacted by the DePuy lawyers and that discussion made him anxious. He said the lawyers were “on him like crazy.” They were putting “big time pressure” on him.
- Mr. Swajger told me that as a result of the conversations with DePuy attorneys, he was worried there could be ramifications for me in my practice in connection with my upcoming Dallas testimony.
- He indicated the lawyers were “peppering him.” He said the “business in Dallas was freaking [him] out.” He said he had a “terrible” day on Thursday as a result of this and my going to Dallas was driving him crazy. He said “I care about you.”
- Mr. Swajger also told me on Friday that he knows as much about metal on metal as I do, and that he would still want metal on metal because the wear characteristics are better than metal on poly, and he would want me to do his surgery.
What Does All This Mean?
Frankly, this affidavit is astonishing. It suggests that lawyers for DePuy Orthopaedics may have reached out to a DePuy employee, medical device sales representative Glen Swajger, for the purpose of using Swajger to influence the testimony of Dr. Shein, who was scheduled to give testimony in the fourth DePuy Pinnacle bellwether trial.
In the affidavit Dr. Shein states under oath that the DePuy sales rep “looked terrible,” that the DePuy lawyers were putting “big time pressure on him,” and that Swajger stated “there could be ramifications” for Dr. Shein based on his testimony in the Depuy Pinnacle trial. Plainly, this would send up a huge red flag to any lawyer trying a case against DePuy. The implication is that the DePuy lawyers wanted to know what Dr. Shein was going to reveal at trial, and possibly wanted to alter what Dr. Shein intended to say. Granted, this affidavit represents hearsay statements attributed to a DePuy employee, and at this point it cannot be taken as anything more than an allegation. But it looks awful, and it suggests an attempt to intimidate a key witness.
The last paragraph may be the most alarming. In it Dr. Shein recounts that Swajger made unsolicited statements about the safety of metal-on-metal hip implants, and that if Swajger were to undergo hip replacement surgery he would want metal-on-metal “because the wear characteristics are better than metal on poly [polyethylene, or plastic] . . . .”
This is jaw-dropping.
If this statement were actually made by a DePuy employee to a surgeon who is preparing to testify in a case about the safety and effectiveness of the metal -on-metal Pinnacle hip, it is hard not to see it as anything other than an attempt to influence the witness’s testimony. Even the judge presiding over the DePuy Pinnacle MDL stated that the affidavit was “disturbing” and “disconcerting.”
If the allegations are proven to be true, a mistrial could be issued, and sanctions could be imposed on the defense team. Further, any lawyer found guilty of witness tampering could be prosecuted and/or disbarred. It is a very serious matter.
So What Did the Judge Do?
Judge Kinkeade ordered an investigation by the FBI and the U.S. Attorneys’ Office. This means that FBI agents and federal prosecutors will question Dr. Shein, Swajger, and the lawyers involved in connection with the affidavit. Following a hearing on the issue yesterday, Judge Kinkeade denied plaintiffs’ request to introduce the allegation of witness tampering to the jury. The judge decided that there was insufficient evidence that tied DePuy and Johnson & Johnson to the actions of their lawyers. It also appears the Swajger backed off his most alarming comments reflected in the affidavit.
The FBI investigation has not been completed. The affidavit, however, is troubling, and the call for an FBI investigation is the right one. At the very least this incident underscores how aggressive cases can become on the national stage. Billions of dollars may be at stake, not only for the six plaintiffs in this trial, but also for the thousands of plaintiffs that still have not resolved their cases in the MDL. With so much at stake, the takeaway so far is that both sides must remain vigilant at every turn to possible wrongdoing.
I will keep you posted on the outcome of the DePuy Pinnacle bellwether trial. Closing arguments in the case begin today, and the jury could reach a verdict by the end of the week.
This article was written based on my review of court documents, several news reports, and my previous writing on the subject.