J&J hip implant whistleblower case tossed over confidential info misuse

FILE PHOTO: FILE PHOTO: The Johnson & Johnson logo is displayed on a screen on the floor of the NYSE in New York
The Johnson & Johnson logo is displayed on a screen on the floor of the New York Stock Exchange. REUTERS/Brendan McDermid
  • Judge says doctors misused information from mass tort litigation with J&J
  • Judge calls dismissal "the most appropriate sanction"

(Reuters) - A federal judge on Wednesday tossed a lawsuit accusing Johnson & Johnson of defrauding the government by marketing defective hip-replacement devices, as a sanction for the misuse of confidential records the plaintiffs had access to in related litigation.

U.S. Magistrate Judge Page Kelley in Boston said two British orthopedic surgeons who served as expert witnesses in mass tort litigation over the hip implants violated court orders by using material from those cases in their whistleblower lawsuit.

The judge said repeated attempts by the court to hold Antoni Nargol and David Langton to their obligations under a protective order to keep the information confidential have proven futile, "making dismissal the most appropriate sanction."

The whistleblowers have shown "that they are unable to comply with orders from this and other courts and that their representations regarding their purported compliance are unreliable," Kelley wrote.

Justin Presnal, a lawyer for the doctors at Simmons Hanly Conroy, did not respond to a request for comment. J&J, represented by Mark Seltzer of Nixon Peabody, also did not respond to requests for comment.

J&J's DePuy Orthopaedics Inc unit stopped selling its metal-on-metal Pinnacle hip implant devices in 2013 after the U.S. Food and Drug Administration strengthened its regulations on artificial hips.

The devices became the subject of thousands of product liability lawsuits consolidated before a federal judge in Texas. After being hit with several adverse jury verdicts, J&J agreed to settle thousands of cases in 2019, though others are pending.

Nargol and Langton were serving as expert witness for the plaintiffs in both that litigation and separate lawsuits over DePuy's ASR hip implants when they filed their whistleblower lawsuit under the False Claims Act in 2012.

It alleged DePuy marketed defective Pinnacle hip implant devices to unsuspecting doctors who then sought government reimbursement for the products. J&J denied wrongdoing.

In her ruling, Kelley said early in the case the doctors had revealed that material in their lawsuit was subject to protective orders in the multidistrict litigation and had to remove it from their complaint.

Further violations occurred and Nargol and Langton were "chastised repeatedly" for not complying with court orders, Kelley said.

They now had the burden of showing whether key information concerning measurements related to the Pinnacle device that they had access to through the multidistrict litigation was public and not confidential, but failed to do so, Kelley concluded.

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

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Thomson Reuters

Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.