By: The Editorial Board
‘Only God makes a perfect hip,” trial lawyer Mark Lanier once observed, which must be news to millions of patients who’ve needed a hip replacement. But Mr. Lanier’s specialty is suing over those replacements, and this week he was slapped down for distortions in court.
On Wednesday the Fifth Circuit Court of Appeals overturned a verdict that awarded $151 million to five people who claimed to have suffered from Johnson & Johnson’s Pinnacle hip implants. The three-judge panel ruled that U.S. district court Judge Ed Kinkeade in Dallas had erred in allowing Mr. Lanier to present “inflammatory character evidence” against J&J.
Mr. Lanier’s stunts were so “obvious, egregious and impactful” that they prejudiced the jury against the company, wrote appellate Judge Jerry Smith. The jury had originally awarded $502 million before Judge Kinkeade reduced it to the merely extortionary $151 million. That would still be a nice payday for Mr. Lanier, since tort lawyers in Texas typically get 40% of the award.
Though it was irrelevant to the case, Mr. Lanier regaled the jury with alleged tales of how J&J associates may have paid bribes in Saddam Hussein’s Iraq. He also recounted a former employee’s allegations of racism at Johnson & Johnson. “Lanier tainted the result by inviting the jury to infer guilt based on no more than prior bad acts” and “that alone provides grounds for a new trial,” Judge Smith wrote.
Mr. Lanier also told the jury that two of his expert witnesses were unpaid and thus unbiased. “Lanier repeatedly leveraged the false contrast between [Johnson & Johnson’s] paid mercenaries and the plaintiffs’ unpaid altruists to his clients’ advantage,” Judge Smith wrote. But Mr. Lanier had already donated $10,000 to a charity on one witness’s behalf, and after the trial he paid the two of them a total of $65,000.
“Lawyers cannot engage with a favorable expert, pay him ‘for his time,’ then invite him to testify as a purportedly ‘non-retained’ neutral party,” Judge Smith wrote. “That’s deception, plain and simple. And to follow that up with a post-trial ‘thank you’ check merely compounds the professional indiscretion.”
The case is headed for a retrial with Mr. Lanier (alas) and the same judge, who we hope has learned a lesson in policing dishonesty.