Plaintiffs’ experts do a lot of stupid things. We’ve dedicated whole posts to them – here and here, for example. Now we have another trick to add to their growing list of shenanigans – plaintiffs’ experts turn FCA relators. That’s right, two of plaintiffs’ experts from the DePuy Orthopedics hip implant litigation are trying to use confidential corporate documents provided to them in that litigation to bring a False Claims Act against the same defendant on their own behalf. Shenanigans.
There’s a bit of history here, but it’s worth it. The hip implant products liability litigation dates back to 2010. The relators in United States v. DePuy Orthopaedics, Inc., 2020 U.S. Dist. LEXIS 119626, *6 (D. Mass. Jul. 8, 2020) served as plaintiffs’ experts in that litigation. In that role the experts/relators “obtained information about [the defendant] subject to other courts’ protective or confidentiality orders.” Id. at *7. In particular, the MDL judge in the Northern District of Ohio issued an order that explicitly prohibits the relators
from sharing or using the information they received in their capacities as experts [in that litigation] in [the present qui tam proceeding]. They are also prohibited from sharing their information with any third-party, including any government entities, foreign or domestic.
Seems fairly straightforward to us. But not, apparently, to the experts/relators because they “used the confidential [defendant] documents, which were subject to [the MDL judge’s] order, to support their allegations in both the complaint and the first amended complaint in this action.” Id. at *8. Shenanigans. Experts/relators had to remove the “tainted” documents and re-plead their qui tam action and file affidavits swearing the revised complaint did not violate the MDL judge’s order. Id. Taking experts/relators at their word that no confidential documents had been used in the second amended complaint, defendants moved on to substantive issues by filing a motion to dismiss. The motion was granted; relators appealed; and the First Circuit remanded with one claim left alive. Id. at *8-9.
The shenanigans however had not in fact ended. Through expert discovery, defendant learned that the experts/relators had given their experts in the qui tam litigation confidential information they learned while serving as experts in the products case. And, that information was used by the qui tam experts “to support key statistical allegations set forth in the [corrected second amended complaint].” Id. at *10. At the heart of defendant’s current motion is that the qui tam experts are now “eternally tainted” and their analysis must be stricken from the complaint — leaving the complaint devoid of allegations to support their one remaining claim. Id. at *13. Defendant also moves to compel responses to discovery requests regarding both the experts/relators relationship with their experts – to determine whether shenanigans in fact took place – and regarding the actual analysis done by the experts – which is required to properly vet the analysis they conducted. Id. at *14.
So, what did the court have to say? First and foremost – the MDL order is crystal clear. The experts/relators are prohibited from using information they received in the products liability litigation “for their own benefit.” Id. at *15. “Regardless whether [the MDL] order must be considered legally binding on relators in the present case, equity demands that it should be.” Id. The reasoning supporting this conclusion is sound:
[A]llowing relators to use confidential information in this litigation, which would not have been available to them but for their role as experts in the [products liability] MDL litigation, would create distrust between parties exchanging confidential information in future, similar litigation. Defendants would become very hesitant in sharing confidential discovery materials if the plaintiffs’ experts could then use their positions of trust to their benefit and [defendants’] detriment. In essence, the confidentiality orders the parties previously relied on would be for naught.
Id. at *17. Too true. What’s the point if confidential documents aren’t limited to use in the litigation in which they are disclosed?
Having ruled experts/relators cannot engage in shenanigans, it wasn’t a far leap for the court to order the discovery that defendant asked for to see if in fact those shenanigans occurred. The experts/relators were ordered to produce to defendant all materials they provided their experts, “including information they generated or received as experts in the MDL litigation.” Id. at *18. Experts/relators were also ordered to respond to the discovery directed at the protocols and processes used by their experts because if there were no additional shenanigans and the case moves forward, those documents were relevant to the defense of the action. Id.
Now, we’ve used the word shenanigans a lot in this post – because we think the term fits. But, if you’re like Brian Cox in Broken Lizard’s Super Troopers, well – we’ll just stop right here.