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.
To read the full text of this article by Duane Morris attorneys Ryan J. O’Neil and Anne A. Gruner, please visit the Duane Morris website.
In a recent decision in a DePuy ASR hip system case (DellaCamera et ux. v. DePuy Orthopaedics Inc. et al., No. CJC-10-004649, Proceeding No. 4649 (Calif. Super. Ct., San Francisco Cty. Nov. 1, 2017), a California Superior Court held that it has specific personal jurisdiction over nonresident defendants DePuy Orthopaedics Inc. (DePuy), Johnson & Johnson and Johnson & Johnson Services Inc. (Johnson & Johnson) for nonresident Connecticut-based plaintiffs’ claims on the basis that DePuy and Johnson & Johnson entered into consulting contracts with two California-resident surgeons on the design of the metal-on-metal hip implant device at issue.
This ruling bears noting in the wake of recent landmark personal jurisdiction decisions, including Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 582 U.S. ___, 137 S. Ct. 1773 (2017), BNSF Ry. Co. v. Tyrell, 581 U.S. ___, 137 S. Ct. 1549 (2017), and of course Daimler v. Bauman, 134 S. Ct. 746 (2014), which have armed defendants with tools to limit plaintiff forum shopping by obtaining favorable dismissals for lack of both specific and general personal jurisdiction.
In DePuy, the court latched onto the fact that the nonresident defendants intentionally contracted with in-state consultants who participated in the design of the hip implant product at issue, and that design was part and parcel of plaintiffs’ product liability causes of action. DePuy is not necessarily a novel approach to questions of specific jurisdiction, but it is a relative outlier in the context of the overall trend of cases restricting the ability of plaintiffs to “forum shop” and litigate outside of jurisdictions where defendants are not located and plaintiffs were not actually injured.
Thus, DePuy may foreshadow a new area of focus in which plaintiffs seek to subject defendants to suit in jurisdictions where consulting agreements and other targeted activities are directed, and which are alleged to give rise to plaintiffs’ causes of action.
To read the full text of this article by Duane Morris attorney Anne Gruner, please go to the Duane Morris website.