Witness tampering is never taken lightly, and a federal judge presiding over a multidistrict litigation with numerous cases filed against Johnson & Johnson’s DePuy Othopeodics unit is demonstrating just how seriously these allegations are taken when they come up. What was, at first, a federal bellwether trial to determine the direction and possible outcomes of thousands of DePuy hip implant lawsuits around the country is now the subject of a federal investigation involving the US Attorney’s office and the Federal Bureau of Investigation.
At issue is an alleged conversation between expert witness Dr. David Shein and a DePuy sales representative that occurred at Shein’s hospital. According to Dr. Shein’s sworn affidavit, he was scrubbing in for surgery and chatting with DePuy sales representative Glen Swajger. Mr. Swajger was onsite for the surgery as a necessary party. Over the course of this conversation, Mr. Swajger expressed concern over Dr. Shein’s involvement as an expert witness testifying in the DePuy case.
Dr. Shein states that “ Mr. Swajger told [him] that as a result of [Mr. Swajger’s] conversations with Depuy attorneys, he was worried there could be ramifications for [Dr. Shein] in [his] practice in connections with [his] upcoming Dallas testimony.” Mr. Swajger continued by saying that he “cared about” Dr. Shein and that he knew as much about metal-on-metal implants as Dr. Shein. Given a choice between metal-on-metal or metal-on-poly, Mr. Swajger communicated that he would still choose metal-on-metal and would want Dr. Shein to do the surgery.
U.S. District Judge Ed Kinkeade has requested that the U.S. Attorney’s Office and the FBI interview Mr. Swajger and any attorney who might have been in touch with him. At the same time, the lead attorney for the plaintiffs in the case must now determine his own next steps as one of his experts is now potentially compromised. “There’s no way as a lawyer I can put this witness on the stand in light of that type of pressure,” he says, “and in light of…that type of pressure and in light of – of that type of – intimidation, and in light of that type of settled psychological manipulation of his testimony, as I perceive it.”
If the allegations prove true, there might be substantial reason for the attorney’s concern as this wouldn’t be the first time he’s seen DePuy move against experts whose testimony might prove damaging to the company. Referring to the case of two orthopedic surgeons who criticized the corporation’s Pinnacle Ultamet metal-on-metal hip implants, he says that he has “seen DePuy work to destroy the practices of witnesses who dare testify against them.”