Ryan J. O'Neil
Anne A. Gruner
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.
Specifically, the plaintiffs filed an affidavit on Oct. 15, 2017, from a physician who was scheduled to testify at trial, stating that the DePuy sales representative who served the physician had met with him just days before he was scheduled to testify. The physician alleged that, during the encounter, the sales representative “looked terrible and appeared distressed” and told him that he had “been contacted by the DePuy lawyers and that discussion made him anxious” because the lawyers were “on him like crazy,” “peppering him” and putting “big time pressure” on him. The affidavit further alleged that the sales representative told the physician he was worried there could be “ramifications” for the physician in his practice in connection with the physician’s upcoming trial testimony.
The next morning, the plaintiffs argued that the affidavit revealed that counsel for DePuy had inappropriately directed a DePuy sales representative to attempt to manipulate the testimony of the physician witness. Given the serious nature of these allegations, presiding District Judge Ed Kinkeade determined that the U.S. Attorney’s Office and the FBI should be called upon to investigate the allegations further.
In response, counsel for DePuy argued that there was no wrongdoing because it is routine, legal and legitimate for a manufacturer to have its attorneys speak with its employees or other representatives who might have knowledge pertinent to an issue or witness involved in ongoing litigation. Moreover, DePuy’s counsel clarified that the alleged communications between counsel and the company sales representative were merely scheduling calls that in no way urged the sales representative to engage in any alleged witness tampering.
Further, upon examination by the court, the physician witness confirmed that the interaction with the sales representative lasted only a “minute” or a “minute and a half,” that he “didn’t think it was that big a deal” and that the exchange had no impact on his comfort with testifying at trial.
This situation provides an example of how even seemingly routine communications between counsel and a company sales representative can be colored to create a perception of impropriety. Indeed, the severity of the investigation that followed, even to the extent of involving the FBI to investigate potential criminal conduct, provides a cautionary reminder of the thought and care that must be taken in handling these types of witnesses, regardless of the circumstances.
Although the judge did rule that the jury would not hear evidence of the alleged witness tampering, the issue was the subject of heated dispute in the middle of an already complex trial. The jury ultimately awarded the plaintiffs a $247 million combined verdict. While we of course cannot speculate as to any alternative outcome had the evidence gone before the jury, these unexpected issues may negatively impact the presentation of a case by diverting the defense’s resources.
The Xarelto Example
In a similar scenario, the plaintiff’s counsel in the Xarelto litigation (Hartman v. Janssen Pharmaceuticals Inc. et al., Case No. 160503416, in the Court of Common Pleas of Philadelphia County, Pennsylvania) asserted that a sales representative for defendant Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson, had improperly contacted a key treating physician witness in a pending bellwether case in an effort to improperly influence that physician’s testimony. The plaintiff’s counsel argued, and Judge Michael Erdos presiding over the bellwether case agreed, that the plaintiff’s counsel was entitled to a midtrial deposition to explore their suspicions of witness tampering.
In support of their position, the plaintiff’s counsel cited what they deemed to be suspect timing of the sales representative’s contact with the physician before the physician’s deposition a few months prior, which they only learned about just before the trial. During that deposition, the physician, who treated the plaintiff-patient for injuries allegedly related to her use of Xarelto, changed his testimony to state that he did not believe Xarelto contributed to the plaintiff’s injuries. This testimony contradicted information in his own medical records.
In allowing the midtrial deposition to proceed, Judge Erdos faulted Janssen for the late disclosure of the sales representative’s contact with this physician, and determined that — given the contradiction in the witness’ conclusions between his records and testimony — Janssen should have realized that this contact was something the plaintiff would have wanted to examine in advance of the trial.
The disclosure itself was made as part of an ongoing discovery obligation to identify all sales staff who called on prescribing or treating physicians for any plaintiff in the Xarelto mass tort cases. The plaintiff’s counsel seized on this information and filed a motion the very day trial was set to commence seeking to exclude the sales representative’s testimony from trial.
The defendants countered that the plaintiff’s motion was a last-minute attempt to exclude testimony of a witness that the plaintiff found unfavorable to her case, and an affidavit was quickly filed on behalf of the sales representative confirming that she had no personal contact with the physician at the time in question. Nevertheless, Judge Erdos sided with the plaintiff and ruled that they should at least be given an opportunity to depose the sales representative to inquire about the alleged contacts.
While the deposition did proceed during the first week of trial, Judge Erdos did not allow the jury to hear the midtrial deposition testimony itself. Despite this evidentiary victory, it cannot be doubted that these witness tampering allegations disrupted the issues likely anticipated to be at the forefront on the day of opening arguments. The jury ultimately awarded the plaintiff a $28 million verdict.
Why Are Sales Representatives the Target of Witness Tampering Accusations?
Sales representatives occupy a unique position in the landscape of a products liability case, even if they lack the same level of understanding of the lawsuit and underlying issues as other institutional client witnesses. Specifically, sales representatives might feel conflicted in products liability cases involving prescription drugs and devices because of the loyalty they naturally feel to both the manufacturers they represent and the physicians to whom they sell products.
These manufacturers and physicians may even be named as co-defendants and, in certain circumstances, could be pointing the finger at one another in establishing whether the plaintiff’s alleged damages were caused by a problem with the physician’s treatment of the plaintiff, a defect in the product or some combination of the two. Given the dynamic nature of their occupation and business relationships, sales representatives also continue to communicate and work in the field every day with both manufacturers and physician witnesses, thereby rendering them particularly susceptible to potential influence and making them an easy target for allegations of impropriety.
Takeaways from the Recent Witness Tampering Accusations
These recent examples serve as a stark reminder that communications with sales representative witnesses must be handled with extreme care. Understanding the role of the sales representative in a products liability action is something that demands critical evaluation in all stages of the case, long before seemingly innocuous conduct might present itself through accusations that blindside an otherwise well-planned trial.
Even if there is no truth to allegations of impropriety, such allegations can nonetheless be damaging to a case and to attorney credibility, and can divert precious resources midtrial, all the while sidelining the actual products liability claims at issue.
In light of the traction these witness tampering issues have recently gained in the courts, attempts to seize upon vulnerabilities inherent to the position of a sales representative will likely become a more common scenario in products liability litigation. The very nature of product sales representatives, as intermediaries between a product manufacturer and the ultimate user of the product, oftentimes makes them important witnesses in a given case even if they were not directly involved in the care or treatment of the plaintiff-patients and otherwise lack the medical training or skills to meaningfully address issues of medical causation.
These witnesses may unwittingly inject themselves into the merits of the case after the treatment or incident at issue through careless or innocent comments. As a result, perceived impropriety or improper motive in sales representative communications is an issue to be mindful of where such witnesses are involved in the sale and distribution of the product at issue, as even seemingly innocent and otherwise routine communications might lead to witness tampering allegations that create new risks and exposure in products liability litigation.
Ryan J. O'Neil and Anne A. Gruner are litigators at Duane Morris LLP, based in the firm’s Philadelphia office.
Reprinted with permission of Law360.