5th Circuit mounts searing attack on plaintiffs’ lawyer Mark Lanier

(Reuters) – Mark Lanier of the Lanier Law Firm is one of the most successful trial lawyers in the country. Trained as a pastor, he has an uncanny rapport with jurors, who have bestowed upon him enormous verdicts: $253 million against Merck in a 2005 Vioxx trial; $6 billion (yes, billion) against Takeda in a 2014 trial over the diabetes drug Actos; $502 million against Johnson & Johnson and DePuy in a 2016 trial over metal-on-metal hip implants.

Lanier is smart enough not to expect every astounding verdict to hold up – the Vioxx and Actos verdicts were, in fact, slashed on post-verdict motions or appeal. But I doubt even as savvy a lawyer as he could have predicted the searing decision the 5th U.S. Circuit Court of Appeals issued Wednesday night in Christopher v. DePuy Orthopaedics, ordering a new trial in the hip implant case.

The 5th Circuit panel – Judges Jerry Smith, Rhesa Barksdale and Stephen Higginson – reamed Lanier repeatedly and by name, accusing him of inflammatory tactics and outright deception. Lanier ran afoul of the Rules of Civil Procedure at least twice in his closing arguments, the 5th Circuit said. The appeals court said those violations, on their own, would have warranted a new trial. But that’s not all the famed trial lawyer did wrong, according to Judge Smith’s outrage-fueled opinion.

Lanier told jurors several times that two key medical witnesses for his side were unpaid, drawing a contrast with DePuy’s expert witnesses. But Lanier’s witnesses, in fact, had either received or expected to receive compensation. Lanier had “manufactured” a “false” choice for jurors between his side’s unpaid experts and the other side’s hired guns, the 5th Circuit said.

I’ll explain the details below, but I want to highlight the truly extraordinary tone of the opinion’s discussion of Lanier’s errors. The 5th Circuit spares him no courtesy whatsoever. In a footnote, for instance, the opinion discusses his side’s improper call for jurors to consider the value of the time of DePuy’s experts in comparison to the day-by-day, hour-by-hour suffering endured by plaintiffs.

The 5th Circuit excoriated Lanier, who “meant simultaneously to activate the jury’s passions and to anchor their minds to a salient, inflated, and irrelevant dollar figure.” But the opinion didn’t call out by name the Lanier co-counsel who first asked jurors to calculate damages based on the plaintiffs’ time. In another spot, the 5th Circuit referred to plaintiffs’ lawyers as “Lanier and crew.” That’s not phraseology you will often see from a appeals court describing a team of lawyers.

The case before the 5th Circuit involved a bellwether trial for five plaintiffs in multidistrict litigation over DePuy’s hip implants. As my colleague Nate Raymond wrote in a Reuters piece last night about the ruling, the judge overseeing the MDL, U.S. District Judge Ed Kinkeade of Dallas, had already reduced the $502 million jury verdict to $151 million.

DePuy and J&J, represented at the 5th Circuit by Paul Clement of Kirkland & Ellis, asked the appeals court for judgment as a matter of law on many of the plaintiffs’ claims or for a new trial because jury deliberations were tainted by the introduction of prejudicial evidence. The appeals court rejected most of the defendants’ technical arguments but agreed a new trial was in order.

So how did Lanier break the rules?

The 5th Circuit said the “most problematic evidence” involved a 2011 deferred prosecution agreement J&J entered to resolve the U.S. government’s Foreign Corrupt Practices Act investigation. One of the government’s FCPA allegations was that J&J affiliates paid bribes to Iraqi officials during the Saddam Hussein regime. In the hip implant case, after DePuy opened the door with testimony about its corporate culture and marketing practices, Judge Kinkeade ordered the company to produce a witness to testify about the DPA. He also allowed Lanier to refer to the agreement several times.

Lanier went too far, according to the 5th Circuit, when he told jurors in closing arguments that they should consider the DPA not just as evidence casting doubt on J&J’s credibility or as rebuttal evidence but “as a proxy for J&J’s liability,” the appeals court said. The 5th Circuit read Lanier’s argument as an invitation for the jury “to infer guilt based on no more than prior bad acts.” That’s improper under the Federal Rules of Evidence and, by itself, “provides grounds for a new trial,” the opinion said.

There was also the matter of inflammatory evidence from a former DePuy employee who claimed the company exhibited racial bias. Judge Kinkeade allowed Lanier to read excerpts from the ex-employee’s resignation letter when he questioned DePuy’s president, prompting the defendants to move (unsuccessfully) for a mistrial. During closing arguments, Lanier obliquely reminded jurors about the letter accusing DePuy executives of racist behavior.

The 5th Circuit said that too was improper. “In reading the letter to the jury, Lanier refocused its attention on serious, and seriously distracting, claims of racial discrimination that defendants had no meaningful opportunity to rebut via cross-examination,” the opinion said. “This spectacle fortifies our conviction that a new trial is required.”

The appeals court faulted Judge Kinkeade for failing to give the jury instructions to mitigate the taint from Lanier’s closing arguments – but left little doubt about where it believed the blame lie.

And then, of course, was the matter of the payments to supposedly unpaid experts. The experts, Bernard and Matthew Morrey, are highly regarded father and son orthopedic surgeons from Texas. Lanier first met with Bernard, the father, in 2015, to see if he’d be willing to appear at the 2016 trial. Dr. Morrey said he would not accept compensation if he decided to testify. Lanier asked about contributing to a favorite charity. After the meeting – but weeks before the trial – Lanier wrote a $10,000 check to Bernard Morrey’s alma mater, St. Rita’s Catholic School in Fort Worth.

The son, Matt Morrey, actually treated two of the plaintiffs in the bellwether trial but also testified more broadly about the riskiness of the DePuy product. He was not paid to testify before the trial but after the trial ended, both Morreys received checks: $30,000 to Matt and $35,000 to Bernard.

The payments, along with the $10,000 check to St. Rita’s, only came to light during trial preparations for the next hip implant bellwether, when plaintiffs’ lawyers designated the Morreys as paid experts. By then, the 5th Circuit said, it was too late to undo the impression Lanier created with the previous jury by repeatedly touting his side’s pro bono truth tellers, in contrast to the defendants’ hired experts.

“Now to the question whether Lanier, knowingly or unknowingly, misled the jury in representing repeatedly that the Morreys had neither pecuniary interest nor motive in testifying,” the opinion said. “The facts speak pellucidly: The pre-trial donation check, Morrey Jr’s expectation of compensation, and the post-trial payments to both doctors are individually troubling, collectively devastating.”

In a very measured response to Reuters’ Raymond, Lanier said last night that he and the other hip implant plaintiffs’ lawyers were happy about the “strong and important” analysis and rejection of most of the defendants’ technical arguments for judgment as a matter of law. Those findings will help in future trials, he said. And the court’s discussion of the DPA and the ex-employee’s letter won’t hurt other hip implant plaintiffs because Judge Kinkeade hasn’t allowed the evidence to be admitted in subsequent trials. “We think that the court misunderstood the issues of monetary representations about the doctors, but we will honor the court’s ruling rather than appeal,” Lanier said. “When all is said and done, we intend to request a retrial as soon as the court can allow.”

I followed up with him this morning, asking whether he thought the 5th Circuit was unduly harsh. Lanier said in an email that the appeals court seemed to ignore three important points about the payments to the Morreys. First, he said, he disclosed the post-trial payments to the defendants. (The gift to St. Rita’s, Lanier has said, was a thank-you to Bernard Morrey for meeting with Lanier about the possibility of testifying, not a payment for his testimony.) “This came to light because I told the parties about it,” Lanier said. “I never hid anything.”

Second, Lanier said, telling jurors about the payment to the Catholic school would, if anything, have motivated the jury to award even more money to Lanier and his clients. J&J and DePuy, Lanier said, would probably have objected if he’d mentioned the donation. And finally, Lanier said a subsequent jury did hear about the St. Rita’s payment and delivered an even bigger verdict for plaintiffs.

“I guess this is the nature of what we do. I am VERY GLAD that we won on the important merits,” Lanier wrote in an email. “EVERYTHING the court used to reverse the decision wasn’t there in any of the other trials (the evidence, the payment issue, etc). And those verdicts/judgments are just as big (and bigger).”