Witness Tampering Claims Leveled at Johnson & Johnson

Johnson & Johnson is one of the world’s most recognizable healthcare companies, with a history of producing and selling pharmaceutical drugs and medical devices since the late 1800s. Despite recent product recalls and lawsuits targeting several of the company’s medications, Johnson & Johnson remains one of the most powerful brands in the world based in large part on its Johnson’s brand of baby products.

Now, Johnson & Johnson is in the unusual situation of being accused of witness tampering in two different cases pending in Texas and Pennsylvania. The allegations are based on conversations the company’s sales representatives had with doctors who were scheduled to testify at trial.

While it is unclear whether any wrongdoing truly occurred, the fact is that witness tampering, particularly in federal court, is a very big deal regardless of whether you’re Johnson & Johnson or Mike Johnson.

Texas Case Opens Door

In the Texas case, Johnson & Johnson’s DePuy Orthopaedics unit is accused of producing and selling a defective, metal-on-metal hip implant that is targeted in more than 9,000 pending cases filed by patients who blame the device for a variety of injuries.

The lawyer representing the hip implant plaintiffs dropped a bombshell in mid-October when he announced that he would not be questioning a doctor who was scheduled to testify because of alleged witness tampering by a DePuy sales rep. The claim was based on an affidavit from the doctor, who said the sales rep told him he was worried that “there could be ramifications” for the doctor’s medical practiced based on his upcoming testimony, which was only three days away.

The judge overseeing the case called in the FBI and the U.S. Attorney’s Office to investigate the claims, with Johnson & Johnson noting that the doctor later said the conversation with the sales rep would not have impacted his testimony.

Apparently satisfied with what he heard after interviewing the sales rep and the company’s lawyer outside the presence of the jury, the judge found no evidence of criminal activity and has allowed the trial to proceed.

A Johnson & Johnson spokesman has said the judge’s ruling proves the company did nothing wrong. The lawyer for the plaintiffs told reporters that he hopes the episode “will inhibit DePuy from tampering in the future.”

Xarelto Case Brings New Claims

In Pennsylvania, Johnson & Johnson’s Janssen Pharmaceuticals unit is being sued over the company’s Xarelto anticoagulant medication. The popular blood-thinner is blamed for causing strokes, excessive blood loss, pulmonary embolisms, and a variety of other medical problems.

Following the news of the witness tampering claims in Texas, attorneys representing the plaintiff in the Xarelto case filed a similar court motion accusing a Johnson & Johnson sales rep of potentially trying to influence the testimony of a doctor who was set to testify only weeks later. According to the plaintiff’s lawyers, her doctor previously had said she suffered from gastrointestinal bleeding complicated by Xarelto, but changed his testimony to deny knowing that she ever had the bleeding.

Johnson & Johnson’s legal team say the lawyers representing the Xarelto plaintiff are making overbroad assumptions, and that the sales rep’s conversation with the doctor had nothing to do with his upcoming testimony. The court has ruled that the plaintiffs’ attorneys can question the sales rep in a deposition that will take place while the trial is proceeding.

Potential Fallout

With Johnson & Johnson being accused of witness tampering in back-to-back cases, it’s worth noting that the same law firm represents the company in both lawsuits. It’s also interesting that the same scenario of a sales rep trying to influence a testifying doctor is being alleged in both instances.

As noted earlier, federal witness tampering is serious business. Under 18. U.S. Code § 1512, anyone who “uses intimidation, threatens, or corruptly persuades another person, or engages in misleading conduct” to influence witness testimony could face a 20-year prison sentence and additional fines.

While doctors and sales reps talk with each regularly as part of their jobs, the more prudent practice would be to impose a communications blackout in the days and weeks prior to a doctor taking the stand in court. It certainly would have prevented the situation that Johnson & Johnson and the company’s sales reps are facing today.

Why Massive Trinity Industries Judgment was Reversed

Big news for Dallas-based Trinity Industries came down late last month when a three-judge panel from the U.S. 5th Circuit Court of Appeals unanimously reversed and rendered, throwing out a $663.3 million adverse judgment. This case presented the odd situation where a plaintiff and jury said the government was defrauded, but the government wanted no part of it.

Like a lot of appeals court rulings, the final decision is focused more on the law’s intent rather than what the plaintiff alleged.

Case Background

The original 2014 verdict followed an earlier mistrial and three years of contentious litigation in the U.S. District Court for the Eastern District of Texas in Marshall. The lawsuit was filed under the federal False Claims Act by a man who owned a company that competed against Trinity. The False Claims Act allows individuals to file lawsuits aimed at protecting the government from fraud. Often, the government will join such cases as a plaintiff, but not always.

The plaintiff accused Trinity of defrauding the federal government by not disclosing a redesign in its ET-Plus guardrail system that was sold under federally subsidized state contracts. Jurors heard one week of testimony before slapping Trinity with a $175 million verdict that climbed to more than $663 million in the final judgment after the addition of penalties and attorney fees.

Court’s Reasoning

Trinity appealed, noting that the government never said there was anything wrong with the company’s guardrails as it continued to buy them. Notably, the Federal Highway Administration decided not to join the lawsuit as a plaintiff and instead issued an official memorandum during the trial expressing its continued confidence in the ET-Plus system.

On September 29, the 5th Circuit panel ruled in Trinity’s favor by reversing the earlier judgment and dismissing all claims against the company. Considering that Trinity didn’t tell the Federal Highway Administration about modifying its guardrail system and later made millions and millions of dollars selling the same system, you might ask, “So why didn’t Trinity lose on appeal?”

The answer, according to the unanimous three-judge panel, boiled down to a question of materiality.

The 5th Circuit noted that even though the plaintiff and the East Texas jury may have believed the government was defrauded, the government’s actions painted a much different picture.

“When the government, at appropriate levels, repeatedly concludes that it has not been defrauded, it is not forgiving a found fraud— rather it is concluding that there was no fraud at all,” the court concluded.

While some will argue that the ruling ignored the jury’s decision, the 5th Circuit’s reasoning no doubt will be relied upon by future defendants in False Claims Act cases until or unless this issue reaches the U.S. Supreme Court.