Plaintiffs Lawyer Suggests Witness Tampering in Depuy Hip Implant Trial

Posted on October 20, 2017 by Medtech[y] Staff

We were alerted to a thread on our forums about a recent tampering allegation in a bellwether trial that focuses on hip implants made by DePuy Orthopaedics Inc., a subsidiary of Johnson & Johnson.

Orthopedic surgeon, Dr. David Shein, filed an affidavit claiming that a Depuy sales representative, Glen Swajger, approached him as he was scrubbing in for surgery and mentioned he was worried about ramifications for Dr. Shein's practice after conversations that he had with Depuy attorneys.

According to the attached affidavit:

  1. On Friday, October 13, 2017, at approximately 11:00am while I 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.
  2. Mr. Swajger looked terrible and appeared stressed, so I asked him what was going on. He said the day before (Ovtober 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. 
  3. 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 connections with my upcoming Dallas testimony.
  4. 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."
  5. 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

It's fair to say U.S. District Judge, Ed Kinkeade, was alarmed by the affidavit.

“This is a serious matter that requires serious—you know—serious treatment and has serious ramifications,” said Kinceade.

Kinkeade continued, “it is certainly disturbing and disconcerting to me,” but did not want to jump to any conclusions. However, he does want the U.S. Attorney’s Office and the FBI to interview the sale rep and any lawyer who had contact with him.

“This is a serious matter that requires serious—you know—serious treatment and has serious ramifications,” U.S. District Judge Ed Kinkeade of the Northern District of Texas said during the hearing in his Dallas courtroom.

According to the transcript of the hip implant trial hearing, the lead lawyer for the six plaintiffs, Mark Lanier, told Kinkeade that the information in Shein’s affidavit is very alarming.

“It is extremely concerning to me when there are requirements under the federal law, as well as state law, that witnesses not be tampered with, that—that it’s a serious felony, that it involves prison time, that it cuts to the core of who we are as a people and what our courts are about,” Lanier said.

Due to the recent information that has come out of this affidavit, Lanier will not go forward with Dr. Shein testifying due to, among other things, the doctor's friendship with the sales rep and the fact that Depuy lawyers had spoke with the sales rep. 

“There’s no way as a lawyer I can put this witness on the stand in light of that type of pressure 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,” Lanier said.

Lanier and his team still haven't decided what relief they will request based on this affidavit. 

We will update this post as new information becomes available.

In the meantime, join our forum discussion about this topic here.