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DePuy Moves to Quash Subpoena

There may be yet some skeletons waiting to be found in the corporate closets of ASR hip manufacturer DePuy Orthopaedics – now a defendant in Multi-District Litigation overseen by the Honorable Judge David Katz.

In November of 2010, it was revealed that two orthopedic surgeons – Drs. Thomas Schmalzreid and Thomas Vail, who were co-inventors of DePuy's ASR hip implant – not only received royalties on each unit sold, but were also paid millions of dollars to promote the product and downplay any concerns about problems that became apparent. Furthermore, these doctors allegedly withheld information from patients about the potential problems associated with the product.

Prior to that, in 2007, DePuy was the target of a Federal investigation for violations of the  Anti-Kickback Statutes (AKS) in which the company was alleged to have been engaging in this very practice – paying doctors and offering other inducements (such as all-expense paid vacations to exotic resorts) for using its products. The investigation ended with the filing of criminal charges against DePuy for conspiracy to violate the AKS.

Under a Deferred Prosecution Agreement (DPA), DePuy settled the case for $84.7 million. This was done because of “remedial actions” taken by the company as well as its willingess to “acknowledge responsibility for its behavior.” However, under the terms of the DPA, DePuy did not have “admit any of the factual allegations in the criminal complaint.”

DePuy was nonetheless required to hire an independent third party to supervise and monitor its compliance with the terms of the DPA. This job fell to an attorney by the name of Debra Wong Yang, who is a partner in the prestigious 122-year-old law firm of Gibson-Dunn.

Fast forward now to the present. As part of the current multi-district litigation involving DePuy Orthopaedics, Ms. Wong and the Gibson-Dunn law firm have been asked provide testimony. Apparently, the defendants are not thrilled about the prospect; DePuy's attorneys have filed a motion to quash the subpoena on grounds that “arguments and accompanying exhibits include confidential information.”

Judge David Katz, who is overseeing the litigation, has already allowed DePuy's motion to seal any documents obtained from Ms. Yang under a protective order. That took place at the end of August; DePuy's motion to quash the subpoena altogether was filed the same day.

At this point, it is impossible to know or even speculate on what DePuy's lawyers are afraid might come out. It seems that if Ms. Yang was satisfied with DePuy's compliance under the DPA, there would be little or nothing for the defense to worry about. On the other hand, facts that may not have had any bearing on DePuy's behavior four to five years ago might shed some damning light on the present case.

More on this story as it develops.

Sources

N/A. “DePuy Moves to Quash Subpoena of Gibson Dunn Attorney in ASR Hip Implant MDL.” Harris-Martin Publishing, 17 September 2012. Available at http://harrismartin.com/article/15168/depuy-moves-to-quash-subpoena-of-gibson-dunn-attorney-in-asr-hip-implant-mdl/ .

N/A. “Report of the Special Committee of the Board of Directors of Johnson & Johnson.” 27 June 2011. Available at http://www.scribd.com/doc/69786603/JNJvsDerivative-NJfedcrt-boardreport .

Learn more about DePuy Hip Replacement and Stryker Hip Replacement

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