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(Reuters) – Johnson & Johnson wants two expert witnesses in mass tort litigation over its hip implants to pay $2.4 million after they were sanctioned for misusing confidential records in their own failed whistleblower lawsuit against the drugmaker.
The company in a motion filed on Tuesday in Boston federal court argued it was "compelled to seek recovery of a portion of the enormous, disproportionate, and unwarranted costs it has suffered as a result of the aforementioned conduct."
It said the $2.4 million was a fraction of the $7 million in fees and expenses it could seek to recover from Antoni Nargol and David Langton, British orthopedic surgeons who served as expert witnesses in related mass tort litigation over its Pinnacle hip implants.
The request came after U.S. Magistrate Judge M. Page Kelley on Dec. 8 dismissed the men's case as a sanction after finding they violated court orders by using confidential material J&J turned over to plaintiffs in the larger hip implant litigation.
J&J's DePuy Orthopaedics Inc unit said Nargol and Langton should be forced to pay its costs along with one of their lawyers, Ross Brooks of The Brooks Law Firm, who it said was responsible for "multiplicitous conduct."
Justin Presnal, a lawyer for the doctors at Simmons Hanly Conroy, and Brooks did not respond to requests for comment.
Nargol and Langton sued DePuy in 2012 under the False Claims Act, which allows whistleblowers to sue companies on the government's behalf to recover taxpayer funds paid out based on fraudulent claims.
They alleged DePuy marketed defective metal-on-metal Pinnacle-branded hip implant devices to unsuspecting doctors who then sought government reimbursement for the products. DePuy stopped selling the devices in 2013.
Nargol and Langton served as expert witness for hip implant plaintiffs pursuing thousands of product liability lawsuits. After being hit with several adverse jury verdicts, J&J agreed to settle thousands of cases in 2019, though others are pending.
While the U.S. Justice Department may intervene in whistleblower cases, it declined to do so in theirs in 2014, leaving them to litigate it alone. A judge dismissed the case but it was revived on appeal in 2017.
Kelley in her ruling said early on the doctors revealed that material in their lawsuit was subject to protective orders in the Pinnacle multidistrict litigation and had to be removed.
But further violations of their obligations to keep the material confidential made dismissal "the most appropriate sanction," she said.
The case is U.S. ex rel Nargol v. DePuy Orthopaedics Inc, U.S. District Court, District of Massachusetts, No. 12-10896.
For the relators: Justin Presnal of Simmons Hanly Conroy
For J&J: Mark Seltzer of Nixon Peabody
Read more:
J&J hip implant whistleblower case tossed over confidential info misuse
Our Standards: The Thomson Reuters Trust Principles.
Nate Raymond reports on the federal judiciary and litigation. He can be reached at [email protected].
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