It is not often that the testimony or circumstances surrounding sales representatives take center stage in a products liability trial involving prescription drugs and medical devices. However, two recent cases involving allegations of improper witness contact by pharmaceutical and medical device sales representatives have brought this issue to the forefront.
They provide a glimpse of the consequences that can arise from such allegations, including putting counsel in the crosshairs of a government inquiry and, perhaps equally damaging, diverting precious trial resources. Examination of these cases provides an overview of why these witnesses may be targeted in witness tampering claims, the extremely serious regard with which courts have considered accusations of witness tampering and how, moving forward, accusations of such impropriety — whether well-founded or not — may become a more likely scenario that can have significant unwanted consequences.
The Recent Case Examples
Recent trials involving DePuy Orthopaedics Inc.’s Pinnacle hip and Janssen Pharmaceuticals Inc.’s Xarelto blood thinner products illustrate how counsel can attempt to capitalize on sales representatives’ unique role as an intermediary between defendant manufacturers and physicians — who may also be witnesses — by testing the propriety of communications with those sales representatives, who might be parties to the litigation themselves and defended jointly by the manufacturer’s defense counsel. Both cases involve accusations that defense counsel inappropriately used sales representative communications to influence the testimony of a physician witness.
The DePuy Example
In a recent trial involving the DePuy Pinnacle hip product pending in the United States District Court for the Northern District of Texas (In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Product Liability Litigation, Case No. 3:15-cv-03489-K), the plaintiffs’ counsel made accusations of witness intimidation and tampering arising out of communications between a company sales representative and a physician witness.