Citing “falsehoods,” “deceptions,” and “inflammatory evidence” on the plaintiff side, Judge Jerry Smith, writing for a Fifth Circuit panel, has overturned a $151 million hip implant verdict won by prominent attorney Mark Lanier against Johnson & Johnson. Reports the ABA Journal:
The court said Lanier had presented father-and-son orthopedic surgeons as unpaid experts, emphasizing their compelling pro bono testimony while contrasting the “bought testimony” of the defendants’ experts. Yet Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent checks totaling $65,000 to the surgeons after the trial along with thank-you notes.
The pretrial donation check and the post-trial payments “are individually troubling, collectively devastating,” Smith wrote. “Lanier’s failure to disclose the donation, and his repeated insistence that [one of the surgeons] had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”
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Shouldn’t the plaintiff’s lawyer be disbarred?
Another point in the opinion: defendants elicited testimony regarding their corporate culture and marketing practices, painting a picture of themselves as “wonderful people doing wonderful things.” As a result, the district court allowed inflammatory character evidence against defendants – including claims of race discrimination and bribes to Saddam Hussein’s Iraqi “regime” – as defendants’ character testimony had “opened the door.” Absurd, given, inter alia, that the defendant owned more than 265 companies in 60 countries. “[T]he Rules of Evidence do not simply evaporate when one party opens the door on an issue.”