U.S. District Judge Ed Kinkeade

Jurors in a bellwether hip implant trial in Dallas will not hear testimony about alleged witness tampering in the case.

In a ruling issued Monday, U.S. District Judge Ed Kindkeade of the Northern District of Texas told lawyers in the litigation he would not authorize DePuy sales representative Glenn Swajger or Dr. David Shein to testify before the Dallas jury about a conversation the two had just days before Shein was scheduled to testify in the trial.

The ruling came after Kinkeade questioned a lawyer for defendant DePuy Orthopaedics as well as the company sales representative outside the presence of the jury.

“I haven't heard anything that says this should be imputed to DePuy, and so I think under that, I'm not going to let it come in either from Shein or from him [Swajger],” Kinkeade told the lawyers in the case.

The conversation between Shein and Swajger became an issue after plaintiffs attorney Mark Lanier raised concerns on Oct. 16 about possible witness tampering. In an affidavit filed Oct. 15, Shein, a New York doctor who treated some of the plaintiffs in the bellwether trial, said Swajger complained to him during a conversation on Oct. 13 that the lawyers were “on him like crazy” and putting “big time pressure” on him, and that “there could be ramifications” for the doctor's practice in connection with his upcoming Dallas testimony.

At that time, Kinkeade said the information in the affidavit was “disturbing and disconcerting” and he said he would bring in the U.S. Attorney's office and the FBI to interview witnesses.

Swajger met with the U.S. Attorney's Office before testifying in court, according to a transcript of the hearing.

Bill Mateja, a Polsinelli shareholder who represents Drinker Biddle & Reath associate Jennifer Brennan and partner Michael Zogby in connection with the witness tampering investigation, said in a statement that his clients knew all along there was no evidence of witness tampering on their part and they are not surprised by the judge's ruling.

“We're pleased with the court's ruling and today's testimony, which clearly established that neither Drinker Biddle, Jessica Brennan nor Mike Zogby ever requested the DePuy representative to even speak with Dr. Shein, let alone try to influence him in any way,” he wrote.

Lanier, founder of Lanier Law Firm of Houston, said he is glad the judge concluded that the matter should not go to the jury. “That is the right call,” he wrote in an email.” My hope is that it will inhibit DePuy from tampering in the future.”

Lanier also said the suggestion from defense counsel that he could be a witness in connection with Shein's affidavit was “simply harassment.” Lanier said that once he heard from Shein that he was told his practice would be harmed by his testimony, he stopped meeting with the doctor and filed the affidavit.

“The testimony made it clear that this wasn't something I ginned up. It happened. I did the right thing reporting it. I'm glad the court clarified that,” he said.

A member of DePuy's defense team in the hip implant litigation, John Beisner, a partner at Skadden Arps Slate Meather & Flom in Washington, D.C., said in a statement that the company has been cleared of any wrongdoing in the matter.

“The Court's finding vindicates our position that the company has acted appropriately toward all witnesses involved in this litigation,” he stated. “The Court's finding shows that opposing counsel's allegations—particularly the suggestions of criminal wrongdoing— were an unfair and unfounded attack on the integrity of the company and its legal team. We are glad to now have this matter behind us.”

Kinkeade did most of the questioning of Swajger and Brennan during the hearing.

Swajger, who said he has worked with Shein for nearly 17 years, testified that he did say the  statements that Shein attributed to him in the affidavit. He told Kinkeade no one instructed him to talk to Shein about his upcoming trial testimony, and DePuy lawyers had instructed him to not speak to Shein. He also testified that no one indicated to him that Shein's testimony would hurt him or hurt Shein.

Swajger conceded he was “concerned” for Shein when he had the brief conversation with the doctor on the morning on Oct. 13. “I think just because he was the only one involved in going out and making a live testimony, that it … It did concern me, sir,” Swajger told Kinkeade.

Swajger said he was worried that Shein's testimony would affect his practice because there were other hip implant lawsuits pending. He said he was concerned Shein could potentially be involved in other suits, and might be subjected to personal liability or malpractice litigation because of it.

Swajger testified that he was surprised when Brennan called him Oct. 12, and again on Oct. 13 to set up a conference call with DePuy defense attorneys. He said he had time to think about the calls from Brennan while he commuted four hours from his home to Shein's hospital in the Bronx.

He said he talked to Shein on his own volition.

“Yeah, I was kind of on my own,” Swajger testified. “Yes, I was concerned for him, and I had four hours to create that concern, I guess. So maybe it built in my head, but I was quite … I was concerned, yes, sir.”

Swajger's attorney, Miles Feinstein, a criminal defense attorney in Clifton, New Jersey, also questioned the sales rep during the hearing—until he was cut off by Kinkeade. The judge threatened Feinstein with contempt after the lawyer questioned whether Kinkeade could be “fair.”

Brennan testified that she was “shocked” when she read Shein's affidavit, and said she did not ask Swajger during their telephone conversations on Oct. 12 and 13 to do anything but make himself available for a call with the trial team.

“I absolutely did not direct or tell Mr. Swajger to do anything and I specifically told him not to talk to Dr. Shein about the litigation,” Brennan testified.