DePuy, J&J whistleblower case tossed over misuse of confidential files

Alan Condon -  

A lawsuit accusing Johnson & Johnson and DePuy Orthopaedics of defrauding the government by advertising defective hip replacement devices has been scrapped after it was discovered that the plaintiffs misused confidential records, according to an order unsealed Dec. 8.

Two orthopedic surgeons from the U.K. — who were expert witnesses in multidistrict litigation over the hip implants — violated court orders by using information from those cases in their whistleblower suit, according to U.S. Magistrate Judge Page Kelley, who presided over the case.

Repeated attempts to hold Drs. Antoni Nargol and David Langton to their obligations "have proven futile, making dismissal the most appropriate sanction," the judge stated in the order.  

The surgeons filed the case against DePuy Orthopaedics and Johnson & Johnson in 2012, claiming that a hip replacement implant in the "Pinnacle" portfolio was illegally promoted and sold by the company over a five-year period. Several devices allegedly fell outside FDA-approved manufacturing specifications, causing false claims to be submitted to Medicare and Medicaid.

Since 2011, the Pinnacle implants have been the subject of more than 5,000 personal injury suits. Johnson & Johnson was ordered to pay more than $1.5 billion in settlements in 2019, but other cases are still pending.  

Drs. Nargol and Langton served as expert witnesses in the Pinnacle litigation as well as lawsuits over DePuy's ASR hip implants when they filed the whistleblower suit under the False Claims Act in 2012.

The judge said the surgeons were "chastised repeatedly" for not complying with court orders and failed to show whether information related to the Pinnacle implants — which they had access to through the lawsuit — was public and not confidential.

Johnson & Johnson did not immediately respond to Becker's request for comment.

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